OP-ED: LAND REFORM — PART 2

Five months and counting: Let’s focus on the unifying threads in the presidential land reform report

By Rosalie Kingwill 26 November 2019

Young black farmers raise their hands to speak on the first day of Limpopo’s hearings into whether Section 25 of the Constitution should be amended. (Photo: Greg Nicolson)

The government has had a key report on land reform since 11 June. When will it move on some of the key burning issues it identified?

This is part 2 of a review of aspects of the Presidential Advisory Panel on Land Reform and Agriculture Report submitted to the president and the public on 11 June 2019.

I

The Presidential Advisory Panel on Land Reform and Agriculture (PAP) submitted its report to the president and the public on 11 June 2019, eliciting a flurry of responses — praise and criticism alike. As discussed in my previous article on the report, the public was largely happy that land reform, arguably the most emotive political question in South Africa, was being upgraded to “urgent” after two decades of fumbling. As mentioned in the first article, some critics were concerned about the lack of detail or the direction it recommends for agriculture, property rights and tenure reform. This article addresses the latter.

Any talk of land tenure policy brings out the touchstone “property rights”. In this regard, there are three kinds of responses: the middle class is concerned about the protection of their property rights, agrarian reformers about ownership as a vehicle (or not) for accumulation, and free-market advocates about private property, asset-formation and minimal state control. For others, land tenure reform is all about the challenges of securing customary, neo-customary and “informal” land rights in communal areas and informal or formalising settlements. Such is the nature of societies with legacies of legal pluralism.

The PAP report addressed land tenure in several contexts. For many of us who fall into the broad category of “civil society advocates” and work in the land tenure reform sector, our interest in the PAP report centred on its analysis of land tenure in relation to broader concerns about land governance and institutional restructuring.

The PAP report has attempted to come to grips with land governance and the central role of land administration as a burning issue in land tenure insecurity. Land governance refers to the management, policies, processes and institutions by which land and natural resources are governed. The report acknowledged that 20 years into democracy, land governance institutions are fragmented and effectively dysfunctional. The report focused on rebuilding the land administration infrastructure as critical to strengthening land tenure security, and indeed, the entire land reform agenda. One entire section is devoted to concrete recommendations on land administration reform (p 90-91) along with tenure reforms in line with it.

Some sections on land tenure in the report were not entirely coherent or sufficiently nuanced to provide a credible and relevant approach to tenure reform. The categorisations and recommendations were at times too blunt and open to misinterpretation. This is unfortunate, but mitigated by the emphasis on the governance and administration aspects of land reform that seem to be gaining some traction in government.

Land governance is the critical over-arching framework of land management that has not transformed into a coherent whole. This has perpetuated the dualistic, two-tier character of land administration that provides pockets of excellence to less than half of the population, leaving the land rights of many who constitute the remainder open to ambiguity, rent-seeking, insecurity and manipulation.

The shift in the PAP report towards grasping the importance of strong land governance is significant and positive. Previous government-commissioned reports have touched on it. The HLP report (discussed in the previous article) did so, but confined the emphasis to the “collapse of land administration in the former bantustans” and reduced it mainly to land tenure “forms”.

Land governance and land administration comprise a potential unifying infrastructure underlying all aspects of land management and regulation, urban and rural, and of which land tenure is only an element. It includes land rights, dispute resolution, spatial planning, land use management, revenue and fiscal matters and information systems.

The dysfunctionality of land administration over wide swathes of the country undermines the entire land reform programme and has led to the unravelling of the land tenure reform programme in particular. Protection and recognition of tenure rights are meaningless without a public administration system to implement and enforce them. For this reason, and after a concerted campaign to anchor land administration in tenure reform, we welcome the panel’s endorsement of land administration as a fourth plank of land reform.

II

Land administration reform comes head-to-head with questions of authority plus a range of socio-spatial and information systems that lie behind tenure forms such as titles, leases or certificates.

Reconfiguring land governance in the interests of inclusion must find ways of managing land rights in contexts that are manifestly different from rights that slot into the Deeds Registry system. It has to confront different ways of measuring space and allocating rights of access, as well as the role of chiefs and local civic authorities that have filled the gap in state land administration. Chiefs and traditional authorities have assumed the mantle of the state in many former homeland rural communities, while in others, including urban communities, local community institutions actually govern internal land relations and attempt to mediate external threats.

In urban informal settlements, local communities attempt to manage the potential “ungovernmentality” of their situation by developing their own governance institutions in ways that are seen as locally legitimate. Some local community organisations or civics are developing into new hybrid institutions comprising state and non-state actors. These tend to follow a different logic from the bureaucratic approaches that that are regarded as threatening to their security.

There are no easy “conversions” of these systems to a conventional cadastral or title system. It has been shown in numerous casework that it is better to work with current realities by adapting the local institutions to fit the purposes for which they have come into existence than force them into costly conversions that prove to be unsustainable.

Local or regional authorities filling in for the dysfunctionality of state institutions has good and bad aspects, but has undoubtedly made off-register rights more vulnerable in the wake of land developments such as mining and local rent-seeking by elites [such as discussed in Daily Maverick here]. The breakdown, and in many cases complete collapse of, land administration in black settlements can lead to insoluble contestations that usually favour the powerful, while limiting the capacity of agencies to provide basic infrastructure. The irony is that the withdrawal of the state, and in some cases rejection of state bureaucracy, occurs in areas that most need state support.

In this context, it is a misnomer to characterise these tenure or governance situations as “informal”. It not so much about governance or tenure forms as it is about competing systems of administration. In the absence of systems of state administration, the gap is replaced by community governance institutions that follow their own logic of governance to fulfil a modicum of administrative structure, often combining with the state but in ways that resemble “adhocracy”.

The challenge now is to build unified structures of governance and administration of tenure while accommodating a diverse set of norms where they do not clash with constitutional principles. This is difficult, but not impossible.

III

Why has this state of affairs reached this point of dysfunction? The challenges arise from the fragmented structure of the state we inherited from the previous regimes. Land administration was alive, but not well during the apartheid years, as it was geographically fragmented according to racial categories of land holding.

Early policymakers faced daunting challenges of institutional reintegration of the entire state apparatus, and land administration was inadvertently sidelined. From the 2000s it was further marginalised or fragmented when a major policy paradigm shift occurred in the Department of Land Affairs (later the Department of Rural Development and Land Reform).

The latter favoured a divided structure of governance following an interpretation of customary or “communal” tenure as synonymous with chiefly authority. It is not, they are separable, as the tenure reform legislation that follows the lines of Section 25 of the Constitution makes clear. The constituencies defending chiefly authority over land rights had political clout in the ANC, compounding the problem and entrenching a dualistic concept of land administration.

Urban tenure was to be solved by housing policies and registering RDP houses. This has manifestly failed to absorb the magnitude of the urban problem.

IV

What is to be done? Both the HLP and PAP reports endorsed the development of a system of rights recordal (to be legislated as a “Land Records Act”). The PAP report went considerably further in raising the importance of land administration to regulate and enforce these rights.

  • First, it defined land administration as wider than land tenure and an object of land reform in itself.

  • Second, it made a number of concrete and immediately actionable recommendations to start the journey or process towards overcoming the weaknesses in land administration based on proposals that were made to the panel in the roundtable sessions. These include a technical task team to oversee a process of reform and to consider formulating a Land Administration Framework Act, which would include legislation on a records system and adjudication.
  • Third, it did not distinguish between rural and urban land administration in keeping with our definition of land administration as a unifying infrastructure that straddles all land uses and forms of land tenure, registered and off-register rights.

  • Fourth, it recommended the immediate constitution of a single data portal for an integrated land information system comprising inter-operable datasets. This would also generate reliable land information about who “owns” what and where. This appears as number one among their recommended short-term interventions.

New technologies based on GPS and open access GIS systems enable mapping of more complex patterns of landholding than conventional surveying and are developing fast. South Africa is behind the rest of Africa in applying alternative tools, partly attributable to the strong association between property rights and title. The proposed land administration institutions would make all legitimate property rights visible, not only those registered in the Deeds office (as currently constituted).

New approaches are justified by research that shows that where rights have been registered for ownership of RDP houses or newly titled peri-urban land, owners often do not register subsequent transactions after first registration. Inter-generational passage of properties to family members occurs by family agreement managed by nominated custodians. Sales are conducted through alternative local witnessing systems, increasingly in written affidavits, that are affordable or free.

Clearly, alternatives must be pursued, and these are available.

An ideal would be to provide the means to adjudicate and balance rights where these are in contention, be it between family members, individuals, communities, local governments or land development applicants such as mining houses. There would be less dependence on the judiciary if governance institutions were able to adjudicate rights, claims and disputes administratively following local norms.

We are proposing a series of trials and experiments in a range of different tenure settings, urban and rural, across South Africa to test these tools and assess the strengths and weaknesses before embedding over-hastily in new laws. We are heartened the PAP report has endorsed this approach and we urge the various departments that would be implicated in these pilots to work with applied researchers and civil society institutions to implement it.

V

What are the criticisms? First, the most common attacks come from advocates that anchor tenure in formal markets, a criticism that has been addressed in many previous articles including in Daily Maverick [see here and here] and not revisited in detail here. Another common criticism is the focus on institutional reforms that require state capacity.

Sceptics regard institutional reforms as “policy overreach” due to the incapacity of the state, hiking state expenditure or as being too state-centric [see Daily Maverick article here]. One critique by the Institute for Security Studies (ISS) saw the PAP report in comparative light to other initiatives such as National Health Insurance, arguing that we should use existing institutions and not be trying to build or change old ones, and to focus on “growth” rather than new institutions.

The problem is not their policy recommendations and compelling vision. It is that in the implementation of these ambitions South Africa is again trying to achieve complex impact that is beyond its capacity.”

Such criticisms present a false choice between economic growth (which is seen as commercial development and class-based solutions) and race-sensitive social development and institution-building. There are no such binary oppositions in a country like South Africa with legal pluralism and our complex racialised legacies. No solutions can survive in opposition to racial sensitivity (“poverty has a black face”) but only in tandem with it.

The PAP report (p 106) acknowledged the challenges and concluded that reconfiguration is both urgent and necessary:

Our engagements and consultations have emphasised the need for urgency for land reform implementation. The capability of the state and the adequacy of its delivery systems remains a serious concern. Through this report the panel has explored options that can assist government in reconfiguring the state machinery to deliver relevant programmes enabled by clear legislation and policies.”

We maintain that a focus on land governance and a unified land administration can help heal socio-spatial rifts, overcome divisive narratives and fractured institutions and contribute to a unifying discourse in the land reform process.

We are aware that, as the PAP report recommendations grow feet, many contentious issues and controversies will flare up again. It is unfortunate that the old race-class divides continue to raise their head. These are expected, but let us focus on the common and unifying threads in the PAP report which includes bona fide attempts to look at the problem from the angle of “what is good for the hive is good for the bee”. A 2,500-year-old observation made by Athenian leader Pericles is a classic element of democratic philosophy that is sadly missing in the minds of the privileged classes today:

I am convinced that people are much better off when their whole city is flourishing than when certain citizens prosper but the community has gone off course. When a man (sic) is doing well for himself but his country is falling to pieces he goes to pieces along with it, but a struggling individual has much better hopes if his country is thriving.” DM

Dr Rosalie Kingwill is a representative member of the Land Network National Engagement Strategy (LandNNES), a civil society advocacy platform with three planks: land administration, small farmer/fisher support and land redistribution, and which has consistently supported the campaign for land administration restructuring. She is an independent critical research consultant specialising in land administration systems, land tenure reform and property rights. She is also a research associate at the Institute for Poverty, Land and Agrarian Studies (PLAAS), University of the Western Cape. She has published widely on issues of land tenure and property rights, and their complex manifestations in South Africa.

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