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Land rights: Apartheid still haunts South Africa

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Phiwe Ndinisa was born and raised in the Eastern Cape. He is of South African-Ugandan parentage. Ndinisa is legally trained and also a writer and thought leader for Ubumbo.

In spite of the Constitution’s promise, post-apartheid policy and legislation have generally endorsed apartheid legacies of economic and social exclusion, resulting in deep economic inequalities, social discontent, and at times violent manifestations of frustration by community members.

“For to crown all our calamities, South Africa has by law ceased to be the home of any of her native children whose skins are dyed with a pigment that does not conform with the regulation hue.”
— Sol Plaatje, 1916.

After more than 25 years of democracy, South Africa still finds itself haunted by ghosts of the brutal colonial and apartheid legacies. The conflicts of the past manifest not only socially, as we struggle to overcome societal divisions and injustices, but also physically.

Apartheid created fragmented towns and cities that located people far from economic opportunities, without the option to live, work and play in one area. Despite land reform efforts after the 1994 election, including the complex land claims process, apartheid spatial planning still influences where we live and work. According to section 25(5) of the Constitution, the South African government “must 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”.

However, more than half of the South African population today does not have security of tenure and lives in some form of communal tenure, with an estimated 17 million people residing in the former homelands, 12 million in townships/peri-urban areas, and another five million in squatter camps/informal settlements. This amounts to more than half the population living under conditions of socioeconomic and legal limbo, as there is consistent failure to develop laws and policies that adequately address the nuanced ways that people live in, experience, and are regulated by a vast number of tenure regimes in their daily lives.

To partially address this legacy of colonial and apartheid authorities, democratic South Africa adopted a three-pronged regulatory approach to land reform policies:

  1. Redistribution – section 25(5) of the Constitution;
  2. Tenure security – section 25(6) of the Constitution; and
  3. Restitution – section 25(7) of the Constitution.

Within this approach, a policy gap exists between the rights of citizens to land under section 25 of the Constitution and the government’s stance on such rights. The gap is really the framing of policy and the default position that it assumes in not giving people more options for how to secure their land rights. For example, in the former homelands, policy framing only sees traditional leaders as the vehicle to land holding but fails to consider more options.

Another example is the manner in which the national building regulations do not recognise informality as a legitimate construction technique and therefore as a tradeable property. Instead of working with informality to legitimise structures and ownership, the country implements entirely outdated building regulations which promote colonial-era edifices and structures.

This means that in spite of the Constitution’s promise, post-apartheid policy and legislation have generally endorsed apartheid legacies of economic and social exclusion, resulting in deep economic inequalities, social discontent, and at times violent manifestations of frustration by community members.

Security of tenure will remain a contested idea so long as people refuse to acknowledge the complexity of land tenure systems across the country. There is no single model for security of tenure and customary rights to land, as different people manage land and its use through often localised systems of social relationships. This makes securing land rights in communal areas complex.

To critically engage with the government’s attempts to come up with the reform of security of tenure, we need to think seriously about the kinds of power relations they entrench. This is especially important in light of the history of colonialism and apartheid, which distorted traditional land rights and customary laws to suit the interests of white power and capital.

Recognising and supporting localised systems of ownership and access in a way that fulfils the principles of equality and human rights enshrined in the Constitution is going to be difficult. As a nation, South Africa remains at a critical stage in the struggle to secure the rights of millions of people living in communal areas and informal settlements and embed our constitutional mandate and imperatives.

Land is a highly emotive and political issue embedded with social dynamics and community power relations. The pressure for security of tenure and the adequate recognition of customary rights to land is mounting and as a country we must find new, beneficial and innovative ways to secure land and property equity.

Sol Plaatjie’s words sadly carry more weight than they did more than 100 years ago. DM

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  • I fully understand and support where you come from but, I really do not see how structures erected within informal settlements will be allowed to follow different rules to what would be done in a suburban context. These rules are foremost about safety and how does one and who would take responsibility for any compromise in that respect.