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III. LAND POLICY ISSUES
This chapter outlines the main policy issues that must be addressed if the land reform programme is to achieve its aims.
Constitutional Issues
There are several constitutional issues which affect government's land policy.
The allocation of powers and responsibilities to national and provincial governments has a fundamental impact on the implementation of land reform, including the administration of state land. Institutional arrangements must have regard to these constitutional powers and responsibilities.
The Bill of Rights in the new Constitution guarantees existing property rights; but it simultaneously places the state under a constitutional duty to take reasonable steps to enable citizens to gain equitable access to land, to promote security of tenure, and to provide redress to those who were dispossessed of property after 19 June 1913 as a result of past discriminatory laws or practices.
1. Allocation of land-related responsibilities
In terms of the Constitution, deeds registration, land survey and land reform are the responsibility of national government. This includes the three key elements of land reform: redistribution, restitution, and tenure reform.
However, provincial governments also have responsibility in a number of functional areas which are closely related to land reform. These are mainly areas where national and provincial governments have concurrent responsibility in terms of Schedule 4 of the Constitution. They include agriculture, environment, soil conservation, housing, regional planning, and urban and rural development. Local governments also have constitutional functions which affect land use and planning. And traditional authorities also carry out land-related functions in terms of customary law.
All three spheres of government and traditional authorities have functions which require land administration. However, at present most of the legislation dealing with land administration has been assigned to the Minister for Agriculture and Land Affairs.
2. Co-ordinating the functions of the different spheres of government
There is a need to coordinate the functions of the different spheres of government. This is necessary both because of the constitutional requirement of cooperative government, and in order to achieve effective government. Examples of this include the following:
Schedule 4 describes areas of concurrent national and provincial legislative competence. Section 146 of the Constitution prescribes how such conflicts are to be resolved. However, legislation should be harmonised to avoid conflicts wherever possible.
Section 44 of the Constitution also gives the national Parliament the power to legislate under certain circumstances on matters falling within the functional areas of exclusive provincial legislative competence, listed in Schedule 5. This national `over-ride' power applies where it is necessary to maintain economic unity, to maintain essential national standards, and to establish minimum standards for the rendering of services. Again, it is desirable that legislation and administration should be harmonised to avoid the need for intervention in terms of section 44.
Close cooperation is necessary in the carrying out of the respective functions of national, provincial and local governments to ensure the most appropriate and effective use of land.
The Minister is authorised to assign or delegate functions of the national government to provincial or local government. The different spheres of government need to cooperate to ensure that administration is carried out at the most appropriate level.
Land administration functions need to be analysed to identify which sphere of government is constitutionally competent to carry them out, and also to identify what assignments and delegations are desirable. This may require some variation between provinces and local governments.
All of this points to the need for the closest cooperation between the different spheres of government on land matters, to ensure successful delivery of services.
3. Responsibility for land reform
It is the responsibility of the national government to ensure a more equitable distribution of land, to support the work of the Commission on Restitution of Land Rights and to implement a programme of land tenure and land administration reform.
On the other hand, it is the responsibility of provincial governments to provide complementary development support (for example, infrastructure, agricultural support services) to those participating in the land reform programme. In this respect, there must be close cooperation between national and provincial governments to ensure that beneficiaries of land reform enjoy services provided by the provinces as envisaged by Schedules 4 and 5 of the Constitution.
4. Deeds and survey
Surveying is necessary for the identification of a piece of land and the title deed records the rights registered in favour of or against that land. Surveyor-generals' offices examine and approve all cadastral surveys, and compile and maintain plans showing the relationship of the various parcels of land to each other. The registrars of deeds register deeds and maintain records relating to all registered parcels of land. The control of these operations is vested by statute in the Minister for Agriculture and Land Affairs, and to ensure uniform countrywide standards surveys and deeds are a national function.
5. Property clause
Effective land reform requires an appropriate constitutional framework. The property clause was highly disputed in the constitutional negotiations, and was one of the last issues to be resolved. The new Constitution seeks to achieve a balance between the protection of existing property rights on the one hand, and constitutional guarantees of land reform on the other hand. The property clause itself now provides clear constitutional authority for land reform. The equality clause also provides clear authority for a programme aimed at achieving substantive equality.
The government is committed to a land reform programme that will take place on a willing-seller willing-buyer basis where possible. However, where this is not possible, the state must be able to expropriate land required in the public interest. The new Bill of Rights expressly recognises that the public interest includes >the nation's commitment to land reform'.
Where land is acquired for land reform through purchase or expropriation, the state is obliged by the Constitution to pay >just and equitable' compensation. The definition of >just and equitable compensation' makes it clear that it will not permit profiteering or undue capital gains at the expense of the public.
6. Eliminating discrimination in women's access to land
A key contributing factor to women's inability to overcome poverty is lack of access to, and rights in, land. Discriminatory customary and social practices are largely responsible for these inequities. Power relations that impede women's attainment of productive and fulfilling lives operate from the domestic to the highest public level. Legal restrictions also impede women's access to land and the financial services to develop it.
Although women play a decisive role in the development of their community, their access to political and economic power is not commensurate with their numbers, needs and contributions. Leadership is often dominated by men who assert that they have their own traditions and culture, and do not require the interfering advice of government officials on how to handle gender relations. This situation partly explains the current lack of women's participation in the programme.
Section 9 of the Constitution confers the right to equality before the law and the right to equal protection and benefit of the law. It states further that equality includes the full and equal enjoyment of all rights and freedoms. In relation to land matters, like many other matters, this requires positive action by government.
Specific strategies and procedures must be devised to ensure that women are enabled to participate fully in the planning and implementation of land reform projects. These have yet to be adequately formulated. Because women generally have less power and authority than men, much more attention must be directed to meeting women's needs and concerns. Unless this is done, existing gender inequities in the allocation of land rights could be exacerbated by the programme. In other countries, gender neutral land reform policies and programmes have had a negative, rather than positive effect on gender equity. These issues must be addressed in the context of national and international developments (see Box 3.1).
Land Market Issues
In formulating its land reform policy, government has endeavoured to take account of the widely conflicting demands of the various stakeholders and the implications of any specific course of action on the land market and investment in South Africa.
There are those who demand that land should be taken from those who have too much of it and that it should be distributed free to the landless. They favour drastic state intervention to redistribute land. There are others who insist that land should be allocated only to those who can prove that they can use it productively and that, in any case, private land is sacrosanct and land should only be transferred on the basis of willing-buyer and willing-seller.
Government has studied the above arguments, as well as attempts at land reform in other countries. The challenge is to find a way of redistributing land to the needy, and at the same time maintaining public confidence in the land market. The reality is that the poor and the landless are not in a position to acquire land at market prices without assistance from the state. This is because the market price of land usually includes a premium, over and above the capitalised value of agricultural profits. Poor farmers will therefore not be able to repay loans out of farm profits and will need financial assistance from the state in addition to, or instead of, credit. In the urban
situation, the poor also depend on the state for assistance in the acquisition of land. Without a programme of state support and targeted intervention, land reform will not be possible.
Government believes that if there are to be grants for land acquisition, then they should be modest so that as many eligible people benefit as possible. At the same time, the grant must be sufficient to ensure that a real benefit is provided and that its effect will be a real improvement in quality of life and household income.
Given limited fiscal resources and increasing competition between different budgetary priorities, the subsidy level must be affordable in macro terms and must also be able to provide a resource that can bring real benefit. The Department of Land Affairs faces the dilemma of whether to provide a high level of subsidy to a small number of people, or whether to provide a modest subsidy to a higher number of beneficiaries. For the time being, the allocation per qualifying beneficiary has been set at R15 000. The level of the subsidy will be kept under review. This subsidy level means that the Settlement/Land Acquisition Grant alone will not provide the resources necessary for a person to enter the commercial farming sector. It is not, however, the intention that the grant should fulfil this function on its own. It is for this reason that great emphasis has been placed on the need to leverage additional resources.
Excessively high land transaction costs are a disincentive to the public to register transfers of ownership. This has a number of negative consequences affecting the collateral value of land, tenure security and the operation of the land market.
The Department is investigating these costs with a view to reducing the burden on potential beneficiaries of land reform. Transaction costs comprise:
cadastral survey, comprising pre-surveying expenses and actual survey costs;
valuation fees;
conveyancer's fees;
stamp duty, payable on leases, mortgage bonds, collateral bonds, etc;
deeds registry fees;
transfer duty, or VAT where the seller is a VAT vendor.
Cadastral surveys may be needed in the subdivision of undeveloped land. The fees charged by land surveyors are fully negotiable, but for the purchaser of a small parcel they can be high. Current practice is that valuation fees are calculated according to a time charge or a fee based on the value of a property. The latter is usually 0.1% of the property value. Lower fees can be negotiated; not all valuers insist on ad valorem rates. Stamp duty can be waived in certain instances. Deeds registration fees are nominal, approximately only 1% of total transfer costs, and are not considered to be restrictive.
Land reform beneficiaries presently pay high transfer duties when they acquire private land. Transfer duty is paid out of the R15 000 Settlement/Land Acquisition Grant in the case of private land acquisition and thus reduces the capital amount available for land purchase. However, transfers of state land in terms of the Provision of Certain Land for Settlement Act, 126 of 1993, are exempt from transfer duty.
The DLA believes that land reform beneficiaries should be exempted from transfer duty. However, it has as yet not been able to obtain agreement to this. Instead, a ruling has been obtained that VAT should be zero-rated on services procured with government grants where the seller is a VAT vendor. In practice this means that where the seller of land is a VAT vendor the beneficiaries buying the land pay 0% VAT. As either VAT or transfer duty is paid, this means that no transfer duty needs to be paid. If, however, the seller is not a VAT vendor then transfer duty has to be paid. This means that different groups of beneficiaries have to pay different amounts, depending on the status of the seller. This is clearly an unsatisfactory situation.
Land reform beneficiaries acquiring land on a group basis, do not qualify for the limited exemptions from transfer duty which only apply to individual purchases. Many land reform beneficiaries buy land as a group. A related problem is that the amount of transfer duty payable is dependent on the legal entity undertaking the purchase. If the legal entity is an individual, the transfer duty is between 5 and 8 % of the purchase price. If a joint enterprise such as a closed corporation acquires land, the transfer duty can be as high as 10%. As a large number of land reform beneficiaries are forming joint legal entities their transfer duty may be high.
Presently, the exemption from transfer duty only applies to land acquisition in cases where land is bought by a natural person (ie not a trust or close corporation) for full ownership of unimproved land, the value of which is in excess of R24 000 and which is acquired to be improved with a habitable dwelling (ie not for farming or a business), or land already improved with a habitable dwelling up to R60 000.
Finally, a major factor contributing to the escalating transaction costs is the excessive fees levied by estate agents in concluding a deal between two parties. Although their part in a transaction may be very limited, they normally charge a service fee of approximately 7% of the purchase price. On the other hand, it must be stated that it is not compulsory to make use of their services and their fees can be negotiated.
D0 Land tax
The possibility of the introduction of a rural land tax, as a means of raising rural local government revenue, and as a policy instrument to complement a non-confiscatory land reform programme, has been the subject of much debate. Land taxes can exert a downward pressure on land prices. They can also be a disincentive to speculators holding land merely with a view to selling it when prices rise.
At the request of the Minister for Agriculture and Land Affairs, the entire question of a land tax was included in the terms of reference of the Commission of Enquiry into Certain Aspects of the Tax Structure of South Africa (the Katz Commission). A specialist sub-committee was set up to investigate the issue.
In the Third Interim Report of the Commission, published in November 1995, the sub-committee stated that there was no reason in principle why a rural land tax should not be given serious consideration, primarily as a source of revenue for rural local authorities. There was sufficient international experience with the implementation of such a tax, and its imposition would not represent a new tax in South Africa.
The sub-committee stated that such a tax should be levied at a local government level. It did not recommend the implementation of a national land tax on agricultural land. It proposed further research into the possible introduction of a local level rural tax.
In September 1996, it published a discussion document on this work and invited public comment. In its discussion document the Katz Commission's land tax sub-committee proposes the drafting of framework legislation (to be included in proposed amendments to the Local Government Transition Act) to provide for the levying of a land tax at the primary level rather than by district councils, because:
property rates are presently levied at the primary level in the case of metropolitan and non metropolitan urban local government;
it is vital that a sound structure of local government financing should be established if local government is to assume its rightful place in democratic society;
primary local government structures have no other tax base to exploit;
if the tax is levied at primary level, and the benefits accrue to the local taxpayer, acceptance and compliance will be higher and administrative costs lower;
interest groups are well represented at the primary level which should counter mismanagement of land tax revenues.
The sub-committee proposes that all land (ie privately owned land, state-owned land and tribal land and land used for any purpose) within the jurisdiction of the local councils be included in the tax base and levied on the improved market value of the land. It further suggests that the tax be levied on the owner and/or occupier to a maximum of 2% per annum for all land in all jurisdictions.
The Department of Land Affairs awaits the outcome of the on-going public consultation with interest. It has also drawn attention to the fact that there are a number of practical difficulties that will have to be overcome if the tax is to be implemented in tribal areas.
Institutional Issues
The land reform programme has taken some time to get off the ground. The reasons for this are easy to understand. It is an entirely new programme which was kick-started in 1995 by the Land Reform Pilot Programme. At that time, a small core of dedicated staff, many of them newly recruited from NGOs, were plunged into a programme which, at the operational level, was entirely new. Many of the legal instruments and procedures with which they had to grapple were ill suited to land reform. There were other serious institutional problems (described in subsequent sections) which hampered their work.
Lack of staff capacity has been a continuing constraint and, as the public demands for land reform increase, a source of major concern. Of the current complement of approximately 2 400 DLA staff, more than three quarters are engaged in the vital survey and deeds registration services, and corporate services (for example, personnel, finance, legal, communications) of the Department.
Only 447 posts, at national and provincial level, are available for land reform policy development and implementation. Until late 1996, only 304 of these posts were filled. Recruitment has been proceeding steadily in recent months and training programmes for new staff are underway.
Increased efficiency is being sought by out-sourcing community facilitation and project planning work to non-statutory service providers and by decentralising decision making to the provincial offices. This is expected to lead to a more effective, innovative and flexible, customer-oriented service. It is also expected to enhance the morale of field staff, hitherto dependent on Pretoria for routine decisions. Even with these improvements in efficiency, and by working extra hours, the number of staff needed to respond to the demand for services under the various programmes is inadequate. The limited staff available for the implementation of the Land Tenure Reform Programme is a particular concern.
The Department recognises that government must strive to reduce the size of the public sector payroll. However, it is necessary to face the harsh fact that without a substantial increase in personnel for this important work, the land reform programme will not be able to meet existing demands or long-term targets.
The many different pieces of land legislation and systems of land administration across the country are an apartheid legacy. In the former homeland areas, in particular, the situation is chaotic. Very often, day-to-day administration and record-keeping have broken down, leading to insecurity and uncertainty as to the lawful holders of land rights. Land records have been lost, permits and other documents have been issued without regard to legal requirements, very often because the laws are unclear. The laws are often unwieldy; even routine decisions have to be made at Ministerial, Parliamentary, or even Presidential level.
After the April 1994 election, all the former homeland legislation was drawn up to the President's office and from there it was assigned to a national Minister or a Premier, dependent on whether the legislation in question dealt with a national or provincial matter. The Minister for Agriculture and Land Affairs has been identified as the responsible Minister for national land legislation.
Section 239 of the Interim Constitution required that, before state land could be transferred, a certificate had to be issued confirming whether the land was vested in national or provincial government. This was done by reference to the function for which the land was used or intended to be used on 27 April 1994. It created the requirement for an additional administrative process in relation to all state land transfers.
The process of delegating and assigning the relevant legislation has been facilitated by the passage of the Land Administration Act, 2 of 1995, which provides a mechanism through which the delegation of legislation to Premiers and officials in the service of both national and provincial government can take place. It also provides for the assignation and/or amendment of legislation. In addition to this, the State Land Disposal Acts that were in force in the former homelands have been repealed and replaced by the (RSA) State Land Disposal Act, 48 of 1961. This Act was amended to allow the power of the President to dispose of state land in these areas to be assigned to the Minister for Agriculture and Land Affairs and for the delegation of these powers to a Premier.
A number of key pieces of land administration legislation have been delegated in particular parts of the country, in terms of the Land Administration Act. The most important of these is Proclamation R188 of 1969 and its derivatives which govern land administration outside proclaimed towns in the former homelands (see Box 3.2).
Proclamation R293 of 1962, which provides for the administration of land in proclaimed townships in these areas, has been assigned to provinces, but it also contains non-schedule 6 functions which require consideration. These assignments and delegations have provided the means for administrative continuity in the areas affected. Proclamation R188 still needs to be delegated to outstanding areas. However, this in itself will not remove underlying problems. These include the fact that the staff who implemented the legislation in the past may not still be in place, that the administration of the system has been prone to corruption in some areas, and that the legislation itself is apartheid based and authoritarian and does not comply with constitutional requirements.
The long-term solution to the land administration problems described above, is closely linked to the tenure reform programme described in Section 4.15. Many of the land administration problems exist because the land is nominally owned by the state. Transfer of this land to the de facto owners will rationalise the situation and reduce the administrative responsibilities of government. In order to achieve this, a series of interim measures have been developed and agreed on with the Provinces. These are described in Section 5.12.
The existing public land management system in the country is fragmented, uncoordinated, non-transparent and inequitable (see Section 5.6). It lacks a coherent information system and is characterised by a lack of clarity in regard to the roles, responsibilities and policies of different institutions involved in the administration, planning and disposal of public land. The need for a set of national norms and standards to ensure the effective use of state and public land as an asset in support of land reform is long overdue.
The existing legislative framework for land development is inappropriate, apartheid based and duplicative. It was enacted to implement apartheid-based separation of residential, business and other locations. This resulted in a confused and complex legislative and institutional framework that varies from province to province and within provinces, where former homeland legislation and procedures were in force. This legislative environment is further complicated by the lack of coordination and integration in planning and legislation affecting different sectors.
Finally, the budgetary system and its inherent tendency towards the creation of inter-departmental competition for resources, is itself a disincentive for the coordination necessary for an effective land delivery system.
1a Lack of community involvement in land development
Sustainable land development requires the participation of affected individuals and communities as partners in the process. Communities often experience problems gaining access to information about land development opportunities and processes. In addition, unorganised communities are not able to express a realistic demand for land. Informal initiatives such as land invasions are frequently perceived as more effective mechanisms for land release, especially in the context of slow public delivery.
Landlessness and overcrowding in the former homeland areas and inappropriate farming methods on commercial farms have given rise to severe land degradation and soil erosion. Although there is a lack of data on the extent and rate of land degradation, there is sufficient evidence to indicate that South African soils are deteriorating rapidly due to poor management practice and inadequate monitoring and enforcement. There is a severe risk of increased environmental degradation if preventive and improved resource management measures do not accompany the land reform programme and land development in general.
Responsibility for natural resource management is spread over different national and provincial ministries, each carrying out their jurisdictions as specified by the specific Acts. This means that the institutional framework, as well as the legal system, generally fail to facilitate integrated approaches to land use, including the protection of the natural environment. The Physical Planning Act, 125 of 1991, the Environmental Conservation Act and the Conservation of Agricultural Resources Act assume integration of environmental management in land use planning. However, at the administrative level, environmental management practices remain sectoral and fragmented.
For the beneficiaries of land reform, accessing land is the first step in a long-term process of development. After farm land has been transferred, government has a responsibility to provide assistance with farm credit, farm-inputs and marketing. Advice and assistance may be needed to facilitate the productive use of the land, as well as the provision of rural infrastructure (eg water supplies, drainage, power supplies, roads). In an urban context, assistance may be needed with the provision of services, including transport facilities, social services, and local economic development opportunities.
Prime responsibility for most of these development initiatives lies with provincial and local government. Without this support, land reform projects can be severely handicapped. The success of the land reform programme thus hinges on the degree of cooperation between the different tiers of government and the extent to which there is a common vision of land reform and subsequent development. Over the past two years considerable progress has been made in developing this common understanding of the programme and in establishing the institutional frameworks necessary to realise it. There are, however, a number of issues that must still be addressed. These include:
the necessity for planning procedures to be kept simple in land reform projects that originate from situations of crisis and that require urgent action;
the importance of establishing coordinating structures between national and provincial government at provincial level that have clear mandates and authority;
the need to ensure that land reform projects and plans are integrated into provincial development plans and budgetary cycles;
the structuring of agricultural extension services to meet the needs of the entire spectrum of land reform beneficiaries, including subsistence producers; and
measures to ensure coordination of land reform development plans between provincial departments.
One of the RDP guidelines to the implementation of the Land Reform Programme was that government resources, such as grant funds, should be >leveraged'. This meant that grants should be used to encourage complementary contributions from a range of local/provincial government, non-government and private sector agencies for economic, social and infrastructural developments. For example, it was expected that local and provincial governments would contribute towards the development needs of land reform beneficiaries, such as the provision of infrastructure and agricultural support. In practice, accessing this additional support has often been difficult.
The R15 000 Settlement/Land Acquisition Grant is essentially a capital grant. It is intended for land purchase, investments in infrastructure, home improvements, livestock, machinery and fencing. The amount available for capital investment for non-land items depends on the proportion of the grant allocated to the land component. More often than not, the major portion of the grant goes towards land purchase and the resources remaining for the acquisition of other capital items are extremely scarce.
For many land reform beneficiaries, access to mortgage finance and credit for working capital and inputs may not be a major concern. However, an increasing number of beneficiaries have developed business plans whose successful implementation requires access to credit and other financial services in order that production and income generation on their newly acquired land can take place. A serious concern for these people, operating in a market economy, is that they need to take care not to over-extend themselves financially and thus risk the possibility of default and the ultimate loss of their land.
Access to credit for disadvantaged and small producers is very difficult. The majority of rural people still have very limited or no access to formal financial services. On the one hand there is a modern and sophisticated financial system which serves the full range of financial needs for a small proportion of the South African population. On the other hand, there is micro-lending and an informal sector attempting to serve the majority of the population in both urban and rural areas. This situation has been created by the fact that in the past land and agricultural financing institutions, in both the private and the public sector, only catered for commercial farmers. Recently, financial institutions, in the public sector in particular, have begun to change their policies to extend assistance to small and black farmers. However, it is still very difficult for land reform beneficiaries and especially for people accessing land in groups, to obtain assistance.
The need for major institutional, policy and legal reform in regard to land and rural financing was identified as a priority. A Presidential Commission of Enquiry into the Provision of Rural Financial Services (the Strauss Commission) was established in 1995 to make recommendations on what reforms would be needed to create an enabling environment for the provision of rural financial services to formerly disadvantaged people. Its report was produced in 1996. Its key recommendations are outlined in Section 4.5. A programme of action for their implementation is being developed.
Environmental Issues
Any programme which reduces poverty, diversifies income and allows people more control over their lives and their environment, should serve to reduce the risk of land degradation. The worst environmental health conditions and natural resource degradation occurs around informal settlements, where people have few assets and minimal control over their surroundings.
The objectives of the land reform programme, aimed as they are at the alleviation of poverty, should ameliorate the current levels of environmental destruction associated with the crowding of large numbers of poor people on marginal, erodible and often dangerous land.
Nonetheless, the land redistribution programme is not without environmental risks. One of the challenges of land reform is to relieve land pressure without extending environmental degradation over a wider area. Unless projects are properly planned and the necessary measures are put in place to govern the zoning, planning and ultimate use of the land, the programme could result in land being used unsustainably, and scarce, good quality arable land being converted to residential uses.
Prior to disbursing the Settlement/Land Acquisition Grant, the Department requires that grant applicants, with the assistance of planners, prepare a feasibility study, which among other things, includes an assessment of the environmental consequences of the proposed undertaking. This requires the applicants to consider the suitability of the natural resources for the proposed production system, and the environmental impact of the proposed residential development. Community facilitators are provided to help community planning for sustainable land use.
While being concerned about the possible adverse environmental impact of land reform, the Department is also aware that, for too long in South Africa, inappropriate planning norms have been imposed upon black people. The Department believes that it is essential to take due account of what the grant applicants themselves believe will improve their lives and not to lose sight of the very limited choices that poor people have. By actively participating in the planning process, both the applicants and the officials will learn what options are practicable and possible. The assessment of environmental sustainability should not be the prerogative of officials alone.
The land reform debate has focused attention on the Subdivision
of Agricultural Land Act, 70 of 1970. 
Although the above Act was primarily designed to prevent the subdivision of farms into uneconomic units, it is believed that its principal role has been to operate as a zoning regulation and prevent land subdivision for residential purposes and unauthorised change of use. There is general agreement that the Subdivision of Agricultural Land Act must be phased out to free up the land market (see Box 3.3). Its repeal should be accompanied by statutory provisions to protect high potential agricultural or environmentally sensitive land, where it is considered necessary. Under the Development Facilitation Act, 67 of 1995, a tribunal may impose conditions relating to land use. However, the capacity of the authorities to enforce compliance, once land has been occupied, will be limited.
In many countries, concern for resource conservation is reflected in laws which govern the zoning of land and prevent unauthorised change of use. The Subdivision of Agricultural Land Act should be replaced with the type of zoning regulations which can prevent unauthorised loss of precious agricultural land or damage to other natural resources. Zoning regulations should be based on national norms, monitored and enforced at provincial and local level by the appropriate government bodies. Depending on their scale, proposed changes in land use would require sanctioning at different levels of government; the greater the change, the higher the level.
The definition and delineation of zones will require proper consultation with the various role players and interest groups. It is apparent that effective measures for zoning and the regulation of land use in rural areas will take several years to put in place.
In the meantime, the application of the Subdivision of Agricultural Land Act will not be allowed to frustrate land reform. A study is under way to determine the effect of the Act on land ownership, land use and the operation of the land market, including land prices. Revised regulations covering exemptions to the Act are being drafted. These will enable subdivision surveys for land reform to be routinely approved by the Surveyor General and for interests to be registered by the Registrar of Deeds. In these cases, the requirement for them to be referred to Pretoria for approval by the Minister will be waived.
Land Redistribution Issues
Land physically locates people's sense of being B past and present. For many, interest in land is simply for residential purposes. But for a substantial minority, in addition to being a place to live, land has potential productive value. The reasons why people need land and the role that it can play in alleviating poverty differs widely B between urban and rural, and within urban and rural settings.
1a Urban areas
Many people were prevented by apartheid from acquiring access to urban land. They found themselves kept out of, or removed from, urban areas in terms of the pass laws, or were prevented by racially discriminatory legislation from acquiring legal occupation of well-located land. The backlog caused by all of these restrictions has created a large and unsatisfied need for secure access to well-located urban land. One consequence of this is land invasion and other forms of irregular occupation of land. Another consequence is a very uneven pattern of urban land prices which forces the poor to locate in inaccessible and remote areas and face high transportation costs and long travelling distances or crowd into poverty-stricken and crime-ridden enclaves closer to employment.
In many informal urban residential settlements tenure is insecure, confused and requires clarification. Registers are incomplete or non-existent, the rights conferred by various forms of tenure are uncertain and not well understood and many people have no formal confirmation of their land rights. For the people concerned, as well as for good local governance and national stability, regularisation of tenure is urgently needed.
Rapid urbanisation is creating enormous pressure on urban land. It is taking place in the absence of clear and coordinated policies and strategies to provide for speedy land delivery, management and development. In the absence of these actions, informal settlements and land invasions will continue to grow in number and complexity.
2a Land invasions
Landlessness and land invasions are a stark reality in South Africa. Delays in the release of land and slow delivery of housing programmes have exacerbated the problem, as have unrealistic expectations, and a lack of information, particularly with regard to the time it takes to transfer land. This has led to urban land invasions and subsequent evictions by local and provincial authorities and ongoing legal disputes. In rural areas, the eviction of farm workers and labour tenants has resulted in a swelling of the numbers of landless and destitute people, and invasions of public or privately owned land often follow. State land has been invaded in some areas where there is no proper supervision or control. Some community groups who have been involved in planning land and housing developments on identified land have found their development brought to a halt by land invaders. Illegal extraction of rent or the `selling' of sites by individuals who plan and lead land invasions is also prevalent.
The invasion and illegal occupation of land is a threat to stability and development. It can only be prevented by an dynamic programme that provides effective solutions to the problems of overcrowding and landlessness. This matter is further pursued in Section 4.8.1.
3a Rural areas
In the rural areas land is needed for a variety of purposes where conditions are very complex and diverse. For example, land is needed by farm workers, labour tenants, and women who need to grow food to feed the family. It is needed by farm workers who want access to land to graze a few stock. In any one community, there are likely to be those who are landless, some who have access to a small patch of land for cultivation, as well as a minority who are able to produce a surplus and wish to produce more. Few or many of these people may be employed from time to time on commercial farms or elsewhere. It is important that the redistribution programme is designed in a manner which will allow it to respond to different needs and circumstances in appropriate ways so that it contributes to the alleviation of poverty and to economic growth.
Municipal commonage provides opportunities for land reform, primarily because it is public land which does not need to be acquired, there is an existing institution which can manage the land, needy residents live next-door and have certain rights to this land. A reallocation of commonage to poor residents who wish to supplement their incomes, could help address local economic development and provide an inexpensive land reform option. However, there are a number of constraints, primarily related to the fact that not all local authorities are willing to assist poor residents to obtain access to the commonage.
The term commonage is traditionally given to land, owned by a municipality or local authority, that was usually acquired through state grants or from the church. It differs from other municipally owned land in that residents have acquired grazing rights on the land, or the land was granted expressly to benefit needy local inhabitants. Municipal commonage is not the same as communally owned land held in trust by the state and usually occupied and administered by tribal authorities.
Regrettably, many rural towns remain mini-citadels of apartheid with all public and private assets, including the commonage, in the hands of the white population. Its use for charitable purposes has been usurped. A practise has developed whereby the land is auctioned and leased to the highest bidder at market rates for private use. Leases are often for periods in excess of 3 years. This practice clearly excludes poor residents. Historically, the commonage had a public character. Current use is often in violation of the purpose for which the land was originally granted.
Municipalities have become dependent on the revenue generated by leasing the commonage to the highest bidder. Consequently, many are now reluctant to make the land available to poor people. Although this is understandable, it is often the case that another portion of the commonage is being leased at a nominal fee to an exclusive club or utilised for a golf course. Ways need to be found to encourage municipalities to reorientate their policies to benefit the majority of their residents.
The precise legal position of each commonage will depend on the specific conditions under which the land was granted, or the conditions contained within the title deed of the land. In general, municipalities may not alienate the land without the consent of the Premier and must make it available for the use and benefit of inhabitants of the land. In most provinces these powers are exercised by officials under the MEC responsible for Local Government.
Municipalities throughout the country are empowered to set aside land under its control for the pasturage of stock and for the purposes of establishing garden allotments. They may make by-laws to regulate and control the use and protection of such lands and the kinds of stock which may be pastured, restrict the number of stock per householder, restrict or prohibit the use of certain of the council's land for pasturage and prescribe appropriate charges. These measures are contained in a number of Municipal/Local Authority Ordinances. However, despite the fact that municipalities have legislative competence over land allocation and management, many councils are not aware of these powers or of how to exercise them.
In other cases, municipalities are not prepared to consider making commonage available to people who they view as relative newcomers who will cause them administrative and management difficulties.
The Department of Land Affairs is committed to ensuring that existing commonage land is used as far as possible for land reform purposes, and will support the purchase of additional land for commonage purposes where this is necessary
(see Section 4.12).
Restitution Issues
Forced removals in support of racial segregation have caused enormous suffering and hardship in South Africa and no settlement of land issues can be reached without addressing such historical injustices. The Interim Constitution provided a framework for the restitution of land rights, instructing the legislature to put in place a law to provide redress for the victims of acts of dispossession that took place after 1913, in the form of restoration of the land that was lost, or alternative remedies. Accordingly, Parliament enacted the Restitution of Land Rights Act, 22 of 1994, creating the Commission on Restitution of Land Rights and the Land Claims Court.
3.17.1 Rural land claims
Rural claimants suffered dispossession under a variety of policies, including clearance of `black spots' and `poorly situated areas', betterment schemes, cancellations of provisos in title deeds and acquisition of land by the former South African Development Trust. Many rural claimants received no compensation or only nominal recompense. By April 1997, almost 3 000 rural claims had been submitted to the Commission, of which a great number were large group claims.
3.17.2 Urban land claims
More than 130 000 families, involving 73 000 properties, were dispossessed under the Group Areas Act, 1950, the Community Development Act, 1966, and the Resettlement of Blacks Act, 1954. Some received consideration for their property by the state. Others, following the proclamation of racial residential areas, were forced to sell on the open market under circumstances which favoured buyers. Since then, much urban land has been developed and changed hands, or has been earmarked for the provision of land and housing for disadvantaged communities. Difficult negotiations lie ahead for all stakeholders. In a number of cases it will not be feasible to restore the land from which the claimants were moved, and demands on the government to provide alternative compensation (land and/or financial resources) will be great. By April 1997, 12 130 urban claims had been submitted to the Commission on the Restitution of Land Rights.
3.17.3 Responsibility to restore land rights
Considering the fact that more than 3,5 million people and their descendants have been victims of racially based dispossession and forced removal during the apartheid era, it is clear that a mammoth responsibility rests on the shoulders of the state to give effect to restitution of land rights. The task is a huge and complex one, and initial progress in the concluding of cases has been slow. However, significant progress has been made in the establishment of institutions, policies and systems to advance the restitution process. Quicker, simplified procedures for less complicated cases are also being developed.
Ultimately, successful conclusion of cases and implementation of restitution orders depends on the constructive participation of a variety of role players, including the Commission, the Land Claims Court, current land owners, national, provincial and local government, and the claimants themselves.
Land Tenure Issues
Until the 1990s, it was government policy that black people should not own land. In townships and ex-homeland areas, the form that land rights took was generally subservient, permit-based or >held in trust'. The land was generally registered as the property of the government or the South African Development Trust. In many areas, the administration of this land was inefficient and chaotic so that people who have lived on land for generations may find that they have no legal right to the land in question, even if nobody disputes that they are the rightful owners of the land. Some people have Permission to Occupy certificates (PTOs). Others do not.
This creates legal insecurity and makes it difficult for people to protect their land, whether from confiscation, or from others coming to settle amongst them. Residents who may have lived on land for decades can find it sold by others who purport to own it.
It also causes confusion and unnecessary disputes. There are many communal areas which have been occupied by groups, communities or >tribes' for decades and sometimes over 100 years. These groups regard themselves as the owners of the land; it is only because of racially discriminatory laws that their ownership is not reflected in the title to the land. Because the land is registered as state property, local and provincial authorities may decide to use it without realising the nature of the underlying ownership. This is often resisted by the group with the historical rights to the land. These situations all too often degenerate into a power struggle between the different parties claiming ownership of the land.
In general the problems which are caused by the lack of legally enforceable rights to land include the following:
vulnerability to interference or confiscation of rights whether by the state or other people;
difficulty in securing housing subsidies and other development finance;
no administrative support for the system of land rights which operates in practice, which in turn contributes to internal breakdowns and administrative chaos giving rise to abuses of power by officials, some chiefs and powerful elites B the position of the poor and the vulnerable is exacerbated by the lack of legal certainty and administrative protections;
unscrupulous individuals take advantage of the lack of enforceable land rights to bring others onto the land in exchange for money and to bolster their personal power.
These difficulties are not limited to people who live in ex-homeland areas and townships. During the last decades millions of people illegally established homes in the >whites only' parts of South Africa. They did so because they had no other means of living near to employment. A pattern of land occupation was created which is unlawful, but to some extent legitimate. It is legitimate because most South Africans acknowledge that such people had no alternative means of acquiring land. Over time, such settlements have become a fact of life. They need to be brought within the ambit of a stable legal system.
As a result of racial land laws, over 80% of the population was squeezed into the townships and the ex-homeland areas. This has resulted in endemic overcrowding, poverty and extreme pressure on the land. As indigenous tenure systems came under pressure, agricultural land had to be sacrificed in order to meet basic housing requirements. This was a crisis adaptation and one of the first priorities of tenure reform must be to relieve this overcrowding rather than to consolidate it. No tenure system can function effectively under the population density which has become the norm in certain areas.
The problem is further compounded by the fact that different tenure systems and rights exist on top of each other. Often people were forcibly removed and >resettled' on land to which others had prior rights. People evicted from white farms were ordered by magistrates to go and settle in black freehold areas. Thus it is commonplace that there are overlapping and competing tenure rights to the same land. One group may claim ownership because they have traditionally owned the land for generations, another because Pretoria awarded the land to them and gave them documents to this effect. In other situations, there are people who were accepted within tenure systems as >refugees' 60 years ago who now claim independent rights to stay there, while the >host' owners want to use the land for the agricultural purposes to which they have always aspired.
In order to stabilise such complicated situations in a way which accommodates the vested interests and needs of all parties, it will often be necessary for the government to make additional land available so that those who have the weaker rights are provided with a viable alternative when land rights are formalised.
3.20 Traditional and communal tenure
3.20.1 Underlying rights
Communal tenure systems exist in large parts of the country. In recent years these systems have been characterised as >backward' and measures were introduced which attempted to privatise and convert communal systems into individual ownership
(see Box 3.4). The way in which this took place often resulted in a confiscation of land rights. For example, land which had previously been jointly utilised by a group was converted into a small number of >full economic units' and awarded to a minority, whilst the majority of the group lost all access to land. Some chiefs were involved in the confiscation of communal land for their own personal gain as were some ex-homeland officials and politicians. Because the legal status of the communal land was weak, there was no easy redress against such dispossession.
These interventions did not acknowledge that communal systems are based on pre-existing joint rights to land. Once the rights underlying the system are recognised and the principle of freedom of choice is upheld, it follows that changes to communal systems can take place only on the basis of agreement by the members.
3.20.2 Rights of members under communal systems
Whilst there are communal systems which function democratically and uphold the rights of all members there are others which do not. There are parts of the country where the rules and practices of communal tenure discriminate against women, both in respect of access to land and in terms of their ability to participate effectively in decision making structures. There are also tribal authorities which do not function democratically and which operate in ways which undermine the constitutionally entrenched basic human rights of members.
The government is under an obligation to ensure that group-based land holding systems do not conflict with the basic human rights of members of such systems, nor of other residents living in communal areas. The challenge is to find a way in which the procedures governing the exercise of group-based rights ensure that all rights holders are able to participate effectively in decisions regarding their joint land asset, and that the rules of such systems are consistent with the principle of equality.
3.20.3 Internal breakdown within communal systems
Many communal systems are suffering from internal breakdown. Individuals flout group rules and there is no means to discipline them, partly because of legal uncertainty in respect of the status of the group's rights, partly because old authority systems have broken down and there is nothing legitimate with which to replace them.
There is a highly developed body of law in South Africa to regulate and support group ownership systems such as companies, trusts, share block schemes and sectional title schemes. This protects the members and beneficiaries of such schemes from abuse and sets out clear procedures and remedies in the event of malpractice. Communal ownership of land needs similar legal and administrative support to enable it to function effectively. A first attempt in this regard has been made with the Communal Property Associations Act, 28 of 1996.
3.21 Violence
Many black tenure systems are characterised by endemic violence. This can be attributed to severe overcrowding, desperate land hunger, the insecure status of most forms of black land rights which then gives rise to disputes and uncertainty, and to the lack of institutional and administrative support for those tenure systems.
A related problem is that of land invasions onto vacant land, or land which is not tightly controlled. Because many people are desperate and have no other viable way of obtaining access to land they may resort to invading land. There are >warlords' who take advantage of this desperation and lead invasions. Thus it is that land has become increasingly to be transacted by violence almost on the model of frontier wars. A group will consolidate itself on land and then defend that land base as its power base. Poor individuals will ally themselves with the warlord or patron who heads the group both in terms of cash payments and in terms of political allegiance and even >military' support.
To the extent that systems are informal and there is no administrative and policing backup they are vulnerable to powerful individuals moving in and establishing their own private system of extortion and invasion. Group systems are particularly vulnerable unless administered by strong institutions with recourse to legal and policing back up.
As already stated, many South Africans had and have no option but to live in informal settlements around the cities. Many of these settlements have existed for years and represent an established form of vested rights in land. A de facto system of land rights exists on the ground, even if it is not legally confirmed. Until such areas are brought within the ambit of the law and functional land administration systems are established, they remain vulnerable to exploitation by unscrupulous individuals. In this context urban tenure upgrading programmes are a necessary first step to achieving stability.
The lack of clarity of the status of black land rights often mitigates against service provision and infrastructural development. Government departments and development agencies are reluctant to finance community schemes when the community does not have legally secure rights to the land on which the development takes place. There are related problems to do with service provision peculiar to most tenure systems. For example, there have been problems with the building of schools on land which is privately owned, whether by a >tribe' or by a grouping of individuals who all own different plots. Another problem in areas made up of individually owned plots is that often no areas have been set aside for schools, roads or clinics. These then either have to be built illegally on land which is owned by private individuals, or the state has to expropriate servitudes over land belonging to many different people. This is often so complicated, costly and difficult that the proposed development gets delayed indefinitely.
Women are discriminated against under many types of tenure arrangements. The most widely recognised form of discrimination is that practised under tribal and communal tenure which has already been referred to. However, there are also many ways in which imposed colonial and apartheid administrative rulings and laws discriminated against women. Furthermore, even under private tenures women are discriminated against in terms of family law and inheritance provisions.
Measures which restrict women's rights to participate in decision making structures in terms of land management and community issues often have just as discriminatory an affect as directly land related discriminatory measures.
3.25 Occupants of privately owned land including farm dwellers
A major cause of instability in rural areas are the millions of people who live in insecure arrangements on land belonging to other people. They have had to do so because of structural reasons. They had and have simply no alternative place to live and no alternative means of survival. This structural situation is the result of literally hundreds of land related racially discriminatory laws introduced and enforced under colonialism and apartheid. It is the reason why current and prospective evictions are so devastating. The evicted have nowhere else to go and suffer terrible hardships. The victims swell the ranks of the absolute landless and the destitute. They find themselves at the mercy of other land owners for refuge. If no mercy is shown, land invasion is an unavoidable outcome. Because the root cause of the problem of insecurity of tenure under these circumstances is a structural one it requires a structural solution.
The crisis in the predominantly white commercial farming areas is particularly severe. Evictions have reached endemic proportions. They are fuelled by the current lack of certainty in respect of farm worker tenure policy and laws pertaining to land rights and security of tenure for current and long term occupants of rural land. It is thus imperative that key interventions be made urgently and in such a manner as to contribute to a climate of certainty and stability.
Government has a duty to intervene to remedy the situation. It recognises that sweeping interventions to upgrade occupational rights could have unintended consequences and result in even more evictions by land owners and the casualisation of farm labour. It is seeking therefore to accommodate the mutual interests of both occupiers and owners. The Extension of Security of Tenure Bill, 1997, is a measure designed to achieve that goal.
Budgetary Issues
Land reform is strategically important for redressing injustices due to apartheid, reducing rural poverty and contributing to the government's growth, employment and redistribution strategy. Current budget allocations reveal that money provided for land reform makes up less than a half of 1% of the national budget, excluding interest payments. Land reform has been allocated about one twentieth of the proposed spending on rural infrastructure. These numbers serve to illustrate that the funding of land reform is not commensurate with its importance.
In an assessment for the Department of Land Affairs, The Macroeconomic Room Within Which Land Reform Will Take Place in South Africa, by the Land and Agriculture Policy Centre, February 1996, the budgetary implications were considered from several angles. The main conclusion drawn was that in order to meet a significant share of the demand for land, the Department of Land Affairs will have dramatically to increase both its capital budget and staff capacity. Increasing both the capital budget and institutional capacity is a prerequisite for achieving widespread income and welfare effects.
The Department is at present compiling its expenditure estimates to the year 2000/01 in accordance with the instructions of the Department of State Expenditure for the preparation of proposals for the Medium Term Expenditure Framework. The expansion of the Land Reform Programme will be planned within the parameters set by this framework.