OP-ED

Title Deeds for All — nice idea versus complex praxis

By Rosalie Kingwill 17 October 2018

Alexandra elderly people gather outside Luthuli House during a march demanding title deeds on August 06, 2018 in Johannesburg, South Africa. (Photo by Gallo Images / Daily Sun / Lucky Morajane)

A recent spate of articles in Daily Maverick and other media on the pros and cons of issuing title deeds to the estimated 60% of the “untitled” population suggests there is a sustained debate on the way. This is a good thing. Land tenure and land rights have been lost in the controversies around expropriation, begging the question of how existing off-register rights, as well as new rights, to land should be legally recognised. Sadly, the trajectory of the debate suggests that the issue is deeply polarised and mired in ideological considerations, with an alarming lack of understanding by many of the actual verifiable conditions on the ground. Participants often talk at cross-purposes and miss the nuts and bolts of what 'title' actually means.

On 6 September 2018 Chris Hattingh, Martin van Staden and Mpiyakhe Dhlamini of the Free Market Foundation responded to an article about land titling by Professor Ben Cousins based at the Institute for Poverty, Land and Agrarian Studies (PLAAS), UWC, on 29 August. On 20 September DM published a perspective on the topic by Lulabalo Ntsholo, researcher for the EFF at the National Assembly. There was a previous spat on Politicsweb (23 and 25 July) when Gabriel Crouse of the Institute of Race Relations (IRR) threw fireballs at the book Untitled: Securing Land Tenure in Rural and Urban South Africa edited by Donna Hornby, Rosalie Kingwill, Lauren Royston and Ben Cousins, UKZN Press, 2017, to which the authors responded on 8 August. A recent City Press article by ANC member, Chief Livhuwani Matsila, on 11 October ‘Villagers Must get Title Deeds’ raises a number of related issues.

Cousins, reiterating some of the main tenets of the book, Untitled, emphasises the importance of understanding the rationale, practices and constraints of existing tenure institutions before rushing to issue title deeds that often fail in their objectives. Both the Free Market Foundation and the EFF engaged with some of the substance of his argument; a welcome relief from the knee-jerk and dogmatic responses from the IRR. Even in their strident defence of titling, the Free Market Foundation authors concede that there may be alternative approaches to securing tenure, alluding to advances in data and information technology and suggesting blockchain technology as a potential solution. Ntsholo of the EFF argues cogently that issuing title deeds must be understood in terms of the “constellation of power these have cemented in South Africa over the past few centuries” which potentially renders title deeds superficial band aid.

There is a cautionary thread in our argument, rather than ‘anti’. It warns that lack of engagement with realities on the ground may lead to phenomenal expenditure on something that may rapidly become dysfunctional. A thoughtlessly or hastily implemented plan of rolling out title deeds could potentially collapse the Deeds Registry if not carefully conceptualised and tested in the field; and will almost certainly fail to meet many of the expectations claimed. It may satisfy an element of tenure insecurity without fundamentally shifting the property structure.

As a start, it is important to understand that absence of title deeds does not mean a vacuum in tenure or property. Untitled Constitutional property rights are strongly protected in law, but lack state institutions of administration to enforce them. The estimated 60% (or more) of the population whose rights are outside the formal property system are not serviced by state land administration, at least in any coherent sense; these have either collapsed or have not been rebuilt or built at all. The Constitutional order has produced strong rights in theory and jurisprudence, even on land owned by others, but there are no coherent systems of enforcement and adjudication to make these rights real.

Off-register rights are in reality administered by a range of local, largely non-state, power structures, with or without formal authority, for example, family heads, chiefs and traditional authorities, civics, group property structures, residents’ associations, vigilante groups, etc, often hotly contested on the ground. State policies, laws and institutions are uncoordinated and misaligned. Old order laws and new order laws under the Constitution compete and collide. Departments of local government, traditional affairs, land reform, planning, rural development and agriculture departments follow variable and clashing agendas and directions. Land governance has thus become increasingly localised, with questionable effectiveness and equity.

Compare this with the existing formal registration system, which has evolved over centuries largely to match land and inheritance practices of western and settler societies. It is a highly abstracted system that lends itself to remote and rigorous administration by a well-co-ordinated state bureaucracy. Epitomised by the Surveyor General’s Office and Deeds Registry, it is backed up by an army of private sector professionals, including planners, surveyors and conveyancers. Unhappily, this well-articulated system cannot work for society as a whole if the abstract principles only match the norms and pockets of a minority, black or white. The system must adapt to gain sufficient legitimacy among the population at large.

There are many other variables. It is hard to overemphasise the difficulties of spatial measurement of complex social arrangements. Family structures, which straddle urban and rural homes, are the main holders of rights, and strive to control access, use, succession and inheritance. However, they exist in the context of competing authorities above them; and moreover, must mediate both exclusive and shared rights. Individuals, families and community members hold a range of primary and secondary rights that are often layered over each other. The human-land relationships are usually not one-to-one, and thus resist neat parcelling or subdivision. If a process of untangling these social webs is not conducted with an empathetic yet rigorous approach, issuing titles may unwittingly open up concealed cracks and trigger disputes for generations to come.

Geomatics Professor Michael Barry summarises the deep-seated problem: “Few conventional land registration systems are designed to handle complex, changing land tenure relationships, especially when interests in land are changing and contested. For most registration systems their primary purpose is providing procedural support to real property law … This limits the information in the registry to the bundle of legal relationships in land; ie the proprietary unit. They tend to omit much of the constellation of relationships, the social, political and economic relationships that, in conjunction with the bundle of legal relationships, actually give effect to tenure in many societies.”

My own research findings show that families do not isolate an “owner” in the family, and thus do not necessarily register successive changes in ownership when land is titled; hence title deeds fall rapidly and repeatedly out of date. This is neither due to expense, though it is a factor, nor sloppiness, but because family members do not wish to record the proprietary relationship alone. This gives power to someone in the family to dispose of all or some of the family’s property unilaterally, a power individual family members are not supposed to have. In the context of poverty, family property is an important safety valve to protect vulnerable members of the extended family. It is also a powerful symbolic social anchor in times of great uncertainty and transition.

One may safely conclude that slapping titles over complex social systems will not replace existing practices and structures, but will add another layer of authority and complexity. The competing poles of power and patronage in communities have complex roots in customary law and segregation, and do not disappear with titling. Contrary to the predictions of those who favour titling as a means to rationalise the administration of tenure to lower transaction costs, the incidence of disputes may actually increase.

Historical legacies of inequality are integral to this debate, but we must engage with present realities without accepting the continuation of tenure inequity. Large numbers of people are clamouring for more reliable evidence of their rights, and demand itayitile, given increasing disputation and alarming threats of covert dispossession by traditional leaders and elites.

How can we utilise new technology as a progressive force for change? Technological innovation provides compelling alternatives to conventional methods of titling. While technology offers enormous possibilities, there are constraints and dangers. No amount of technology on its own will overcome skewed and socially complex tenure patterns. Alternative models must be piloted and tested in the field. This involves working recursively on the ground with families, communities and social structures, and the evidence translated into abstract adjudicatory principles to allow for upscaling over time. These processes take time and perseverance. And they must resonate with local understandings. Non-statutory approaches do contain a distinct logic. They follow relatively standardised practices and procedures in urban and rural settlements for documenting changes in ownership or occupation using local witnessing by authority figures with written affidavits. This is a good start. Public acknowledgement through witnessing is central to registration processes around the world. The legal expression of registration in our common law is “giving notice to the world of rights in things” (traditio coram judice rei sitae). This means simply that when property is transferred, notice must be given to the public in the presence of a designated authority.

From the technology perspective, there have been major developments in mapping land rights. Lobbies in South Africa and globally advocate the use of modern geo-spatial technologies to facilitate mapping and recording off-register tenure rights using cost-effective GPS and geographic information systems (GIS). UN-Habitat in Nairobi founded the Global Land Tool Network (GLTN), which designed the GIS-based Social Land Tenure Domain Model (STDM) in collaboration with the International Federation of Surveyors (FIG). Other GIS models have been developed to capture complexity in uncertainty, including Barry’s Talking Titler software. These lend themselves to more flexible, accessible and cheaper methods for collecting, storing and maintaining land-related information for tenure recognition. These alternatives are gaining credible traction among many geomatics professionals and academics, and international standards are being developed to ensure quality.

There is some capacity in South Africa to implement new models. A remarkable GIS-based local records system has been implemented in Monwabisi Park informal settlement, Cape Town with the help of an NGO, VPUU. The case reveals that much as the technology assists, it must be accompanied by intensive social facilitation, such as enumeration, adjudication, dispute mediation and ongoing updating and maintenance. Sadly, unofficial records systems have neither authoritative recognition nor any financial assistance from the state, which continues to emphasise an infelicitous straight path to conventional titling. The report of the Parliamentary High Level Panel outlined some of the new thinking, but few influential figures in the ANC embrace it. It is understandable that people fear it may reinforce second-class rights. An exception is Kgalema Motlanthe, who in a recent speech endorsed the Panel’s recommendations to use GPS technology “to record where people were living now, and that be used to recognise their land rights”.

It does seem plausible that block-chain methodologies may dominate future registration systems globally. It is a relatively cheap and efficient digital mechanism to produce reliable evidence and prevent fraud and manual manipulation of records. But it is no panacea. There are dangers in block-chain methods being privatised, potentially further fragmenting property institutions in countries like ours, where we first need to develop an overarching and principle-based land administration system for the country as a whole.

The stage is set for rapid advances in digital information systems that, if harnessed carefully, could bridge disparities in tenure and straddle the variable concepts people have of human-land relationships. There are dramatic differences between meanings of ownership and succession in different socio-cultural contexts, and with respect to different resources; and these are never static. Systems of title are not monolithic, and should be allowed to develop appropriately in response to particular historical conjunctures. Some introspection of the historical progression of title deeds in South Africa reminds us that the system evolved over a long time in service to white ownership, but also struggled to overcome resistance within its own ranks. Many Afrikaner customs regarded inheritance as an automatic right, and resisted wills, which resonates with aspects of African custom today.

The point is that for any system to work requires common adherence to the values that underlie it. A contract works well when the contracting parties adhere to the same set of beliefs and values about what they are transacting. New institutions need to be responsive to the realities on the ground. There are no simple short cuts or panaceas. Technical or bureaucratic solutions cannot instantly leapfrog over socio-cultural realities. The issues are deeply embroiled in a divided land tenure landscape, which has implications for how we rebuild an inclusive land administration infrastructure to serve all citizens in future, and to which they are entitled. DM

Reference: M Barry & K Asiedu, Visualising changing tenure relationships: the Talking Titler methodology, data mining and social network analysis, Survey Review, 2016. DOI:10.1080/00396265.2015.1120385

Dr Rosalie Kingwill is a research associate at the Institute for Poverty Land and Agrarian Studies (PLAAS), University of the Western Cape, an associate at Phuhlisani NPC and an independent research consultant. The insights are based on three decades of fieldwork in the Eastern Cape, including doctoral and policy research in rural and urban contexts. She has also serves on the Land Administration Working Group of LandNNES, a Civil Society Platform for a National Engagement Strategy (NES) on land reform. She has published many articles and chapters that draw from her PhD thesis ‘The Map is Not the Territory: Law and Custom in African Freehold, a South African Case study (UWC 2014), including Papering over the Cracks: An Ethnography of Land Title in the Eastern Cape in Kronos: Southern African Histories.

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