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South Africa's Communal Land Rights Act: A Plea for Restraint in Reform

  • Hanri Mostert

Abstract

This article reviews the collection of essays edited by Aninka Claassens and Ben Cousins, dealing with South Africa's controversial Communal Land Rights Act (CLRA). It comments on the implications of the CLRA for land law and reform. The background to and policy choices underlying the enactment of this piece of legislation are discussed, and the difficulties with its implementation are highlighted. It is significant that, in the case of Tongoane and Others v Minister of Agriculture and Land Affairs and Others, the constitutionality of the CLRA was challenged even before the CLRA became operative. The article discusses the main arguments raised by the constitutionality challenge, and raises further constitutionality issues. It considers the recommendations of Claassens and Cousins and makes further observations, particularly in light of the Tongoane judgment which was delivered after the book was published in 2008.

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1 Communal Land Rights Act 11 of 2004; declared unconstitutional in its entirety in the Constitutional Court decision in Tongoane and Others v National Minister for Agriculture and Land Affairs and Others, CCT 100/09, judgment delivered on 11 May 2010 (Tongoane 2010).

2 It is estimated that approximately 13 million people or 2.4 million households still reside in the former “homelands” to which the CLRA would have applied. This amounts to almost 30% of South Africa's total population. Pienaar, GSecurity of communal land tenure by registration of individualistic title: Is the Communal Land Rights Bill of 2003 the final solution?” (2004) Tydskrif vir Hedendaagse Romeins-Hollandse Reg [Journal of Contemporary Roman-Dutch Law] 244 at 244–45;Mostert, H and Pienaar, JM “Formalization of South African communal land title and its impact on development” in Cooke, EJ (ed) Modern Studies in Property Law III (2005, Hart Publishing) 317 at 317 and 319;Nonyana, MRThe Communal Land Rights Bill 2002 and related legislation” (2002) 6 Butterworths Property Law Digest 7 at 7–8; B Cousins “Comments on the Communal Land Rights Bill” (submission to the Portfolio Committee on Agriculture and Land Affairs, B67-2003, 10 November 2003).

3 J Love “Foreword” in Land, Power & Custom xii.

4 Mostert and Pienaar “Formalization of South African communal land title”, above at note 2.

5 A Claassens and S Ngubane “Women, land and power: The impact of the Communal Land Rights Act” in Land, Power & Custom 154.

6 Mostert and Pienaar “Formalization of South African communal land title”, above at note 2 at 317–19.

7 See in general H Smith “An Overview of the Communal Land Rights Act 11 of 2004” in Land, Power & Custom 35.

8 11678/2008 TPD, judgment delivered on 30 October 2009; endorsed by the Constitutional Court in Tongoane 2010.

9 See <http://www.lrc.org.za> (last accessed 3 October 2009).

10 G Marcus “The Communal Land Rights Bill” (submission to the Human Rights Commission and the Legal Resources Centre, 20 October 2003).

11 Love “Foreword”, above at note 3 at xiv.

12 B Cousins “Contextualising the controversies: Dilemmas of communal tenure reform in post-apartheid South Africa” in Land, Power & Custom 3 at 3.

13 See further Mostert and Pienaar “Formalization of South African communal land title”, above at note 2.

14 Cousins “Contextualising the controversies”, above at note 12 at 3.

15 Smith “An overview of the Communal Land Rights Act”, above at note 7.

16 Id at 45.

17 Smith “An overview of the Communal Land Rights Act”, above at note 7 at 39–40; “Memorandum on the objects of the Communal Land Rights Bill” (2003), para 1, available at: <http://www.ruraldevelopment.gov.za/legislation_policies/bills/_docs/objects_memo_CLRB_September_200322.9.03.doc> (last accessed 21 June 2010).

18 “Memorandum” id, para 2(d); confirmed in CLRA, secs 5, 6 and 8.

19 Id, para 2(g).

20 Id, para 2(f) and CLRA, sec 19(5).

21 CLRA, sec 2.

22 Smith “An overview of the Communal Land Rights Act”, above at note 7 at 40.

23 Id at 40–41.

24 CLRA, sec 14.

25 The Minister of Land Affairs or someone he/she designates would have to initiate the inquiry: CLRA, sec 14(1) read with sec 15(1). For more detail, see Mostert and Pienaar “Formalization of South African communal land title”, above at note 2 at 327. CLRA, secs 14(2)(a) – (i) set out the details of the enquiry. The “options available for securing rights” must be established. Amongst others, the enquirer has to deal with conflicting rights, which may relate to conflicts between family members or tribal affiliations or, where relevant, the effect of possible restitution claims on the land and existing rights. The interests of the state must also be considered. The provision of land on an equitable basis and gender equity are further factors to be taken into account. Other categories of vulnerability (such as age or infirmity) may also be considered, as may the quality, size or location of the land to be awarded. Spatial planning, land use management and land development constitute other essential aspects of the enquiry, which will require the co-operation of local government and traditional leadership structures. The need for and extent of comparable redress is another factor to be considered. Moreover, the enquiry must concern “any other matter as prescribed or as instructed by the Minister.”

26 CLRA, sec 18. Once the land rights enquiry was complete, the enquirer would have to lodge a report with the minister, on which the minister may base any further action, once it was certain that the requirements of the CLRA and the Constitution had been met, and all relevant laws (relating to spatial planning, local government and agriculture) and the interests of the affected “old order” right holders had been considered. The process of determination was aimed at identifying the best possible solution for every holder of a specific “old order” right. Where applicable, the location and extent of the land to be transferred would have to be determined. Where boundary conflicts arose, the minister would have to clarify those boundaries.

27 CLRA, sec 4.

28 Bennett, T “African land – A history of dispossession” in Zimmerman, R and Visser, D (eds) Southern Cross – Civil Law and Common Law in South Africa 65 at 8191; Mostert and Pienaar “Formalization of South African communal land title”, above at note 2 at 317.

29 CLRA, sec 1.

30 Id, sec 18.

31 Id, sec 4 read with secs 5 and 6.

32 Id, sec 4(1).

33 Mostert and Pienaar “Formalization of South African communal land title”, above at note 2 at 327.

34 CLRA, sec 19.

35 Id, secs 6 and 5.

36 Smith “An overview of the Communal Land Rights Act”, above at note 7 at 67.

37 Id at 69.

38 For example, A Claassens “Power, accountability and apartheid borders: The impact of recent laws on struggles over land rights” in Land, Power & Custom 262; A Claassens “Customary Law and zones of chiefly sovereignty: Impact of government policy on whose voices prevail in the making and changing of customary law” in Land, Power & Custom 355.

39 Smith “An overview of the Communal Land Rights Act”, above at note 7 at 67–69.

40 Cousins “Contextualising the controversies”, above at note 12 at 9–14; id Smith at 35–42; C Murray and R Stacey “Tagging the bill, gagging the provinces: The Communal Land Rights Act in Parliament” in Land, Power & Custom 72.

41 Pienaar, GThe land titling debate in South Africa” (2006) Journal of South African Law 435 at 448–49.

42 Mostert, H “The diversification of land rights and its implications for a new land law in South Africa” in Cooke, EModern Studies in Property Law II (2003, Hart Publishing) 3 at 20.

43 Cousins “Contextualising the controversies”, above at note 12.

44 B Cousins “‘Embeddedness’ versus titling: African land tenure systems and the potential impact of the Communal Land Rights Act 11 of 2004” (2005) Stellenbosch Law Review 512.

45 Pienaar “The land titling debate in South Africa”, above at note 41 at 436–39.

46 Cousins “Contextualising the controversies”, above at note 12 at 9.

47 Id at 10.

48 Ibid; and T Bennett “‘Official’ v ‘living’ customary law: Dilemmas of description and recognition” in Land, Power & Custom 138.

49 B Cousins “Characterising ‘communal’ tenure: Nested systems and flexible boundaries” in Land, Power & Custom 109 at 123–26.

50 Mostert, H and Pope, A (eds) The Principles of Property Law in South Africa (2009, OUP) at 334.

51 A Claassens and S Ngubane “Women, land and power: The impact of the Communal Land Rights Act” in Land, Power & Custom 154.

52 Cousins “Contextualising the controversies”, above at note 12 at 15.

53 Id at 10.

54 Id at 11.

55 Id at 11.

56 Id at 11–12.

57 Cousins “Characterising ‘communal’ tenure”, above at note 49 at 131.

58 See CLRA, secs 21 and 24, and TLGFA.

59 Cousins “Characterising ‘communal’ tenure”, above at note 49 at 131–32.

60 A Claassens “Power, accountability and apartheid borders: The impact of recent laws on struggles over land rights” in Land, Power & Custom 262; and L Ntsebeza “Chiefs and the ANC in South Africa: The reconstruction of tradition?” in Land, Power & Custom 238.

61 Tongoane, above at note 8.

62 See the more detailed discussion of A Claassens and D Gilfillan “The Kalkfontein land purchases: Eighty years on and still struggling for ownership” in Land, Power & Custom 295 at 296.

64 Currently decisions in the Dixie community are taken at village meetings convened by the headmen in consultation with the development forum which includes the water committee, the policing forum, the school governing body and representatives of women and youth: A Claassens with M Hathorn “Stealing restitution and selling land allocations: Dixie, Mayaeyane and Maluleke” in Land, Power & Custom 315 at 322–23.

65 Id at 327–29.

66 Id at 327–28.

67 Makuleke Community v Parfuri Area of the Kruger National Park and Environs, Soutpansberg District, Limpopo Province 1998 JOL 4264 (LCC) at para 7.

68 Claassens with Hathorn “Stealing restitution and selling land allocations”, above at note 64 at 336–37.

70 Id at 349.

71 Id at 350.

72 Id at 351.

73 CLRA, sec 18(3)(d)(iii)(bb).

74 Compare, for example, Dawood and Another v Minister of Home Affairs and Another 2000 (8) BCLR 837 (CC); and Shalabi and Another v Minister of Home Affairs and Another 2000 (3) SA 936 (CC).

75 Compare with Janse van Rensburg v Minister of Trade and Industry 2001 (1) SA 29 (CC) at para 25.

76 Id at paras 42–48.

77 Id at para 49.

78 Id at para 63.

79 The judge held secs 2(1)(a) (insofar as it concerns the land already owned or securely held by a community), 2(1)(c) and (d), 2(2), 3, 4(2), 5, 6, 9, 18, 19(2), 20, 21, 22, 23, 24 and 39 of the CLRA to be unconstitutional and invalid.

80 See especially Alexkor (Pty) Ltd and Another v Richtersveld Community and Others 2004 (5) SA 450 (CC) at para 51.

81 Claassens “Customary law and zones of chiefly sovereignty”, above at note 38 at 357.

82 See for example sec 5 of CLRA.

83 Alexkor (Pty) Ltd, above at note 80 at para 62.

84 Mostert and Pope (eds) The Principles of Property Law in South Africa, above at note 50 at 334.

85 Claassens “Customary law and zones of chiefly sovereignty”, above at note 38 at 375.

86 Id at 376.

* BA, LLB, LLM, LLD (Stellenbosch). Professor of law, University of Cape Town. This article emanates from various discussions facilitated by the LandLawWatch Research Focus Group at the University of Cape Town. The author acknowledges contributions from all members of the research focus group, but in particular those of Anne Pope (University of Cape Town), Ebrezia Johnson (Stellenbosch University), Jacques Jacobs (University of Cape Town) and Leon Killian (University of Cape Town). Rebecca Browning (University of Cape Town) rendered valuable research assistance. The author also gratefully acknowledges financial support from the National Research Foundation. Views expressed are the author's own, as are the remaining errors. They should not be attributed to any of the persons or institutions mentioned.

** Referred to in this article as Land, Power & Custom.

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South Africa's Communal Land Rights Act: A Plea for Restraint in Reform

  • Hanri Mostert

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