Contested land tenure reform in South Africa: experiences from Namaqualand

Abstract

In South Africa the distribution of land rights remains a major manifestation and cause of injustice, only slowly affected by the constitutionally mandated programme of land restitution, redistribution and tenure reform. The Transformation of Certain Rural Areas Act 94, 1998 (Trancraa) is the first post-apartheid legislation to reform 'communal' land tenure. It applies to 23 former 'coloured rural areas' and was introduced in six areas in Namaqualand in the Northern Cape Province during 2001-2. In a different, contested process a Communal Land Rights Bill for the former 'homelands' was published in August 2002, adopted by Cabinet in 2003 and signed into law in July 2004. While the Communal Land Rights Act relies on 'traditional councils' with a majority of non-elected members, Trancraa was enacted in the context of the 1997 White Paper of South African Land Policy and focused on community choice and the role of municipalities. The consultative process in Namaqualand was driven by civil society organisations and community actors, but did not include the training, finance and development support needed to transform rural relations among people affected by unemployment, land scarcity and weak local organisations. To promote procedural and substantive justice, tenure reform must honour the human rights of equality, redress and land development support articulated in land policy and the Constitution.

Land reform and the new elite: Exclusion of the poor from communal land in Namaqualand, South Africa

“…Although the acquisition of municipal commonage and the allocation of this land for use by communal farmers has moved forward significantly, the communal land tenure reform process, following referenda to elicit community choice on land ownership in five of the Namaqualand reserves, has remained stalled since late 2002 (Wisborg and Rohde, 2005). Given this lack of progress with reforming the management of the old commons it is not possible to assess who will eventually benefit from this change in policy.…”

“…Through the Transformation of Certain Rural Areas Act of 1998 (TRANCRAA), ownership of the communal areas is to be transferred from the national Minister of Land Affairs, to either local municipalities, or private community-based legal entities. The TRANCRAA process will also address the management of this communal land once the issue of ownership has been resolved (Wisborg and Rohde, 2005). In addition to communal land tenure reform through TRANCRAA, land redistribution is also being undertaken with the acquisition of additional land for communal farmers in the form of municipal commonage (Wellman, 2000).…”

Decentralization, Pro-Poor Land Policies, and Democratic Governance

“…In this paper we use "4 Rs": registration, redistribution, restitution, and recognition. However, as with different forms of decentralization, countries may engage in several types of land tenure reform simultaneously, as in South Africa, which has had constitutionally mandated programs of land restitution, redistribution, and recognition of communal land rights to redress the highly skewed distribution of land rights that is seen as both a manifestation and cause of injustice (Wisborg and Rohde, 2005). Even a single program may combine aspects of different types of reforms.…”

“…For example, even with a strong constitutional mandate to redress inequalities, the impact of South Africa's land reforms has been limited by the training, finances, and development support needed to transform rural relations among people affected by unemployment, land scarcity, and weak local organizations. This is especially the case where new arrangements call for communities to take on responsibilities for autonomous management that include registration, policing, and other duties that require high costs and capabilities (James, 2007;Wisborg and Rohde, 2005).…”

Pastoralism and Land Tenure Transformation in Sub-Saharan Africa: Conflicting Policies and Priorities in Ngamiland, Botswana

“…While the formalisation of the commonage under the Transformation of Certain Rural Areas Act of 1998 (TRANCRAA) in South Africa's rural Namaqualand has increased tenure security for individual plot holders, in respect to de Soto's hypothesised benefits of formalisation and privatisation, tenure security for users of the commons, especially pastoralists, has decreased [44]. Formalisation has led to privatisation, increased fencing, reduced communal rangelands and closed corridors so undermining local grazing patterns [45].…”