White Paper
5 LAND DEVELOPMENT, PUBLIC LAND MANAGEMENT & LAND ADMINISTRATION
Land Development
Physical planners use the term land development to describe the process of identifying, acquiring and releasing land and water resources for development - for housing, for schools and hospitals and other public services, for recreational facilities, for business premises and for productive infrastructure. In townships and settlements where building and settlement have taken place without formal planning, land development is concerned with upgrading and ameliorating physical conditions. Land development policy therefore has to cater for a wide variety of needs and circumstances.
5.2 Purpose
In the context of land reform, land development policy is designed to establish a framework and procedures to facilitate the speedy release of suitable land for urban and rural development programmes which will benefit those who were marginalised by previous apartheid policies.
5.3.1 Problems in rural areas
In the past, rural land use planning was strongly polarised. One system was developed to serve the needs of large-scale commercial farming. It stressed specialised and exclusive land uses, with the Subdivision of Agricultural Land Act, 70 of 1970, being the main instrument to implement zoning regulations, based on questionable notions of economic units of farming land (see Box 3.3).
The other system was devised for the very different circumstances of overcrowded black labour-reserve areas, mostly in the former Bantustans. 'Betterment planning' stressed the concentration of population and rigid demarcations of land uses. This undermined the livelihoods of rural people who depended on a combination of income sources. Small-scale farming, where it has survived, has been forced to conform to labour reserve policies and betterment planning. In some areas, this has led to distant arable lands being abandoned in favour of intensively cultivated gardens near the homestead, often on plots too small to produce significant benefits.
The regulations governing land use in these areas are derivatives of the regulations promulgated in terms of the Black Administration Act, 38 of 1927. These regulations, whether contained in various versions of the betterment or R188 regulations, are authoritarian, have inappropriate punitive measures and have no provision at all for public participation. The regulations hand responsibility for administration to magistrates who must consult with tribal authorities. In many areas, these regulations are not administered at all. There is a serious need for a new land use planning and a development planning and control system responsive to the needs of people living in these areas.
5.3.2 Problems in urban areas
Urban land use patterns in South Africa's towns and cities have been brought about by a combination of social and economic forces, apartheid planning and approaches to physical planning which have frequently been adopted from First World countries. Geographic segmentation of urban areas according to race and class, urban sprawl and disparate levels of service provision and access to urban amenities in different areas, make South African cities extraordinarily inequitable.
Deconcentration and decentralisation policies have given rise to isolated settlements on the urban fringe which are functionally dependent on the urban centre. Racial segregation and the resulting townships located on the urban periphery have exacerbated sprawl. It has been reinforced by low density development, which makes insufficient use of investments in the provision of urban infrastructure and amenities.
Urban sprawl also imposes high costs and time wastage on society in terms of journeys between residential areas and places of economic opportunity and social amenity. It increases the capital costs (particularly of the provision of services) and operating costs of urban infrastructure (especially transportation). The poor are adversely affected by dispersed urban development, being effectively trapped in many parts of the city by the high cost and lack of transport.
There are a variety of constraints to the identification of well located land to improve access for the urban poor to the city. These include zoning regulations and, until now, a reluctance by some local authorities to take responsibility for identifying and releasing land for development. Objections to new developments from existing communities also have to be resolved. Legislative constraints and the high cost of land assembly have resulted in the scarcity of land for low income housing.
5.4 Approach
5.4.1 Creating a coherent and integrated legislative framework
Current legislative incoherence must be transformed into an integrated, efficient and equitable planning and development system that establishes a balance between the public interest and private property rights. It must foster a financially, socially and environmentally sustainable approach to land development and the spatial integration of towns and cities and establish speedy land development procedures. Furthermore, clarity should be created at each level of government in relation to responsibilities in land development. The Development Facilitation Act, 67 of 1995, discussed below, is seen as a key means of achieving this.
The Department of Land Affairs, as the principal department responsible for the Act, has an important role to play in supporting various departments and levels of government in the implementation of their powers and responsibilities for planning and regulating land development in terms of this Act.
5.4.2 Reforming the institutional framework
To achieve clearly defined roles and responsibilities for both the private and public sector and the different levels of government in land development, effective and appropriate institutions and public participation in the land development process are required.
The devolution of responsibility to lower-tier governments, in order to deal with diversity in land supply and demand, financial resources and institutional capacity, will not be effective without properly functioning local institutions. Resources and support to develop this capacity at local level must be accorded priority by both national and provincial governments.
The Development and Planning Commission established in terms of the Development Facilitation Act, 67 of 1995, has the reform of planning frameworks and the clarification of institutional roles and responsibilities as a key element of its work. The Commission's terms of reference have been curtailed and its time-frames shortened in order that its recommendations can be incorporated into policy and law as soon as is possible. The Commission's revised terms of reference are as follows:
to elaborate on and provide mechanisms and procedures for the effective use of the Chapter One general principles of the Act and to establish mechanisms for monitoring compliance with these principles;
to analyse and assess all existing planning legislation and its consistency with the Act; and to devise appropriate mechanisms for establishing a framework for planning at national, provincial and local government levels;
to investigate instruments that may be used for the establishment and administration of appropriate land use planning and control systems for both urban and rural areas, at local government level.
5.4.3 National land use planning
A coordinated land use management system within national government and between national and other tiers of government is necessary. This requires a coordinating capacity to manage land use planning at national government level, as well as inter-governmentally. Decisions about optimal use of state land would be an important aspect of this work.
To develop and establish such a system, an inter-departmental committee at national government level should be established. This body would need to define the scope of coordination, develop the principles, criteria, institutional framework and decision-making processes necessary for its effective functioning.
The existing Forum for Effective Planning and Development, that brings together national departments and provincial MECs responsible for planning, may well be the appropriate body to oversee the establishment of this capacity. The scope and content of its work should be resolved by that body in relation to a broad spatial, strategic and national development plan. A priority task will be to work with the role players in the public and private sector to set in train the processes needed for the definition and delineation of zones (ie areas of high agricultural potential; priority conservation areas; residential areas; and industrial development) essential for the sustainable development of the nation's resources.
The establishment of a coherent and accessible framework for land development will be achieved only in the longer term. However, in the short term, impediments to speedy land release threatens the success of urban and rural development programmes. In order to provide a means to speed up land development processes, pending thorough-going reform of planning and land development frameworks, the Development Facilitation Act has been formulated.
The Act will facilitate appropriate and speedy land delivery by establishing:
nationally uniform norms and standards in relation to land development;
national legislation in parallel to provincial (inherited) laws as an alternative to more appropriate mechanism for rapid land delivery;
a mechanism for early registration of tenure in order to facilitate the flow of housing finance and reduce the costs of holding land; and
a National Development and Planning Commission to investigate and make recommendations on a land development framework for the country.
A feature of the Act is the legal requirement for structured interaction and consultation between various departments and levels of government.
The Act has the potential to usher in a new era of principle-led planning. General principles relating to land development have been formulated to promote efficient and integrated land development. Future land developments will be considered with reference to these principles which constitute a nationally-binding set of norms. The elaboration of these principles in order to give greater guidance to provincial and local governments rests primarily with the Minister for Agriculture and Land Affairs.
Box 5.2 summarises the general principles, which apply to all land development, which are set out in the Act.
The Development Facilitation Act introduces measures to facilitate and expedite land development projects. It aims to overcome bottlenecks in existing regulations
to accelerate land development, especially the delivery of serviced land for low-income housing.
A key innovation is a provision for 'staged' tenure. This will allow for tenure security to be provided at an early stage in the land development process. This will allow a greater proportion of subsidy finance to be used for physical improvements, through minimising the holding costs of undeveloped land. The subsidy will therefore be made available at an earlier stage than is the case at present.
'Staged' tenure will also assist in other settlement situations, including those where a phased provision of services is likely. This means that people settling on unserviced land will be able to acquire tenure security immediately, and hence, an inducement to invest in improvements.
The Development Facilitation Act makes provision for the formulation of 'land development objectives', or development performance measures, at local government level, as a fast track alternative to current time consuming procedures. In this way the development intentions and performance of local government can be assessed by provincial governments. Land development objectives are important tools to guide land development decisions with reference to goals to development in that particular area as well as with regard to the availability of resources in the area. Some local authorities, especially rural institutions, may need to be supported in the formulation of these objectives, in order to avoid delays in decision-making. The process of setting Land Development Objectives must be harmonised with the Integrated Development Plans required in local government legislation. Discussions on this are in progress between the Department of Land Affairs and the Department of Constitutional Development and Provincial Affairs.
The Development Facilitation Act operates in parallel with existing land development and planning legislation. Its key implementation mechanism is the establishment of provincial development tribunals which will be responsible for government approvals of land development under the Act, and will permit faster development decision-making, conflict resolution between stakeholders and greater community involvement in land development.
The tribunals will be staffed from the public service and land development experts. They are new institutions that will need to be established and resourced. The new tribunals may be flooded with applications under the Development Facilitation Act, which could aggravate likely resource constraints and be used for applications which could be accommodated by the existing legislation. Provinces may need to prioritise the nature and scope of land development applications to be dealt with through the tribunals in their early stages of formation.
The National Development and Planning Commission, to be established under the Development Facilitation Act, will investigate a new legislative and policy framework for land development and planning in South Africa. Its purpose is to advise national government and, if so requested, provincial government on future policies and laws dealing with land development procedures.
The Commission is seen as a key initiative for the achievement of an integrated, efficient and equitable development and planning system. It provides for provincial nominees (from the public and private sector) to sit on the Commission or, alternatively, for the provinces to set up and fund their own Development and Planning Commissions to investigate provincial land development issues. The Act requires that the Commission, apart from government officials, will be made up of representatives of suppliers of goods and services in the land development industry, representatives of the intended beneficiaries of land development and experts in areas such as land registration, engineering standards, planning, the environment, transportation, etc.
The Development Facilitation Act allocates appropriate roles and responsibilities to the different tiers of government with respect to land development. It also requires far greater co-ordination than hitherto, between the different government institutions involved in the land delivery system.
Public Land Management
5.6 Public land
Public land includes land held by provincial and national governments, as well as land owned by local authorities and land belonging to parastatals or other enterprises wholly owned by government. State land is land which is held by the national and provincial governments, but excludes local authority and parastatal land. It includes former SADT land and land already allocated to communities and individuals in the former homelands and former coloured reserves. Although the ownership and hence the extent of government control over this land varies, public land is a national resource, the uses of which should be governed by a policy that supports the government's macro-economic, human development and redistribution goals.
There are a broad range of policy issues in relation to public land. For example, there is concern that the asset should be effectively managed in the public's best interest; that the tenure rights of those who beneficially occupy public land should be secure; and that public land should be properly allocated for land reform and for the national development programme.
The Land Development Policy, discussed above, is taken as the overarching framework within land use and development decisions around public land should be made. Government's key responsibilities in regard to public land include the following:
to ensure the release of state and public land as a resource for sustainable development;
to create an accessible and accurate and comprehensive information system on public land holdings;
to establish, in consultation with other tiers and departments of government, clear and transparent criteria for the development or disposal of state and public land;
to establish acceptable mechanisms for public consultation on the use of state and public land;
to clarify the roles and responsibilities of different tiers and departments of government in regard to public land.
To ensure an effective and transparent system of public land management in South Africa, it is important to clarify the roles and responsibilities of the different tiers of government, and of other authorities in relation to the administration, planning and disposal of public land. In so doing, a range of factors need to be considered, including relevant constitutional provisions and the establishment of clear mechanisms and procedures to facilitate co-operative governance
The division of state-owned land between national and provincial governments was dealt with by section 239 of the interim Constitution. Section 239 provided for the classification of state land as national or provincial state land. The new Constitution therefore does not deal with the vesting of state assets, as this was already dealt with by the interim Constitution. On 27 April 1994, all state land vested in either the national government or a provincial government, in accordance with the principles set out in section 239. Item 28 of Schedule 6 of the new Constitution re-enacts the previous `section 239 certificate' provisions of the interim Constitution. As before, certificates are to be issued by a `competent authority' (currently the Minister for Agriculture and Land Affairs) who is responsible for confirming whether the land has vested in national or provincial government.
Within national government, clarity is also required in relation to state land management. At present, the State Land Disposal Act, 48 of 1961, as amended, splits responsibility for this land between the Minister of Public Works and the Minister for Agriculture and Land Affairs. The Minister of Public Works is responsible for former RSA land and the Minister for Agriculture and Land Affairs, for the former South African Development Trust land and for land within the former homelands. This division creates substantial administrative difficulties.
5.7.1 The agreement with the Department of Public Works
The Department of Public Works and the Department of Land Affairs have recently reached an agreement on the rational allocation of responsibilities for the management and disposal of land (see Box 5.4). The agreement recognises the need to rationalise state land custodianship, administration and disposal functions into distinct and complementary roles and responsibilities between the two departments.
The agreement not only defines areas of key competency and responsibility, but also establishes a mechanism through which decisions can be made on the allocation and use of this land. The mechanism and the structures underpinning them are based on the principle that decisions around use of state land are best taken at a decentralised level and through a cooperative process of land identification and negotiation around its use by the relevant authorities.
5.7.2 State land planning committees
The Minister for Agriculture and Land Affairs holds a large quantity of state agricultural land. A Power of Attorney in respect of the administration and disposal of this land has been made out in favour of the national Department of Agriculture. This Department will take responsibility for delegating its responsibilities under the Power of Attorney to provincial Departments of Agriculture that wish to assume them.
The principle underpinning the allocation and disposal of this land, and the procedures through which this is to take place, is governed by a framework for co-operation that has been agreed between the Department of Agriculture and the Department of Land Affairs.
The foundation of this co-operation is an agreement on the harmonisation of policies on land reform and agriculture with respect to the planning, disposal, financing and servicing of settlement projects, and the joint planning of individual settlement projects in such a way that this will both inform and be informed by policy on land reform and agriculture.
Close liaison between the two departments at a national level, as well as co-operation with Provincial governments on the development of policies and provincially based strategies and guidelines for the disposal of state land is fundamental to the success of this policy.
Joint State Land Planning Committees will be established on a project level for the purpose of managing the compilation of a Settlement Project Plan for the properties concerned. As in the case of the State Land Disposal Committees, officials of both national departments, as well as provincial authorities and other identified parties will be part of this structure.
The Settlement Project Plan will contain all information relevant to the allocation or disposal of identified properties and will include in addition to a physical description of the land, a consultation strategy for the project; the criteria to be used for the selection of beneficiaries, including small-scale farmers; the financing arrangements for the project and the subsidy amounts involved; the pricing policy to be applied in cases of sale and lease; and an implementation strategy that will identify all authorities and institutions that will be involved in the project.
5.7.3 General obligations
Holding of state land by one department or tier of government, does not mean that other state agencies do not have obligations in relation to it. Responsibilities with regard to the allocation and use of state land are also regulated by public law and statute. It is therefore possible for national government to exercise functions in relation to state land which vests with provincial government, or public land which is held by local government. For example, the Upgrading of Land Tenure Rights Act, 112 of 1993, vests with the Minister for Agriculture and Land Affairs and applies to townships where land is held by the provincial government. Another example is that of the Development Facilitation Act which lays down uniform norms and standards for land development which is applicable to all public land in the country.
The holding of land on behalf of the state brings with it criminal and civil liabilities and the legal competence to enter into contractual arrangements relating to the land. The holder is also responsible for maintaining an asset register and is accountable to the Auditor General. In view of the legal and practical consequences of holding state land, clear lines of responsibility need to be drawn.
As is stressed above, government agencies, as major urban and rural landholders are in a unique position to make an important contribution to national development by releasing land for social upliftment and economic development. This must be done in a socially responsible and economically sensible manner. Both the need for land, especially for the poor and dispossessed, and the development potential of the land, should be considered when determining its use and allocation.
The different levels of government should have a constructive attitude to the disposal of public land for development, in addition to responding positively to requests for its use. The creation of a governmental capacity to identify potential developments for a particular piece of land within the context of national, provincial and local development plans is a key element of this. The State Land Disposal committees described above provide the means for a process of land identification and categorisation to be undertaken jointly by all three spheres of government.
Within this categorisation process to be undertaken by these committees, a prioritisation of land uses and a hierarchy of needs must be developed to guide decision making. As already stated, the use of land for state domestic purposes, as well as the earmarking of land for restitution - either as land to be returned to claimants, or as compensatory and alternative land - are high priorities. The allocation of land for redistribution purposes has a high priority in a rural context. In an urban context, the use of state land for social infrastructure, including housing programmes, small and medium enterprise development and urban agriculture are priority uses.
Each piece of state land should be examined in relation to a hierarchy of needs and uses before any disposal decisions are taken. Consistent with this is a position that the sale of state and public land on the open market should be considered only if the land is unsuitable for state-assisted development. Furthermore, the funds generated through the disposal of state land should be used, where possible, in support of further land acquisition for development purposes.
In situations where there is no clearly identified eligible community which might acquire the land, its disposal or allocation should take place through a range of mechanisms, including calls for proposals from the public for the development of the land, open tender, invited tender and, as a measure of last resort, public auction. In cases where these forms of disposal are chosen, the transparency and legitimacy of the process will depend significantly on the extent to which information is widely disseminated to all interested parties, including the basis on which decisions are to be made.
5.8.1 Public consultation processes around the disposal of state land
Clearly structured public participation and consultation is essential for decision making on the allocation and use of public land. Time and resources invested in the process significantly reduces conflicts due to dissatisfaction with decisions. The consultation process, however, does need to be carefully devised, with the roles and expectations of different players, as well as the decision making processes involved, clearly defined from the outset.
In cases where state or public land is allocated as part of the land reform programme to qualifying beneficiaries, the land reform services that apply generally would be made available. These include the provision of grants to facilitate community planning for the use of the land and its development.
5.8.2 Guidelines for land pricing
State land has a value which should be taken into account when it is transferred to beneficiaries of the Settlement/Land Acquisition Grant, even if it is a book value. For fairness sake, the formula set out in Section 4.6 for the valuation of private land should be used for state land, which should be sold or transferred at a just and equitable price, usually based on an analysis of comparable market sales. Where there are no comparable sales data for the locality, prices of comparable land in a similar area should be used. Other proxies, for example the prevailing rental values in informal land markets in the area, may provide a basis for valuation.
5.8.3 Guidelines for leasing state land
Until such time as a permanent use for available state land has been decided, it is necessary for government to ensure that the land is used beneficially through short term leasing, ie up to three years.
The procedure to be followed in the advertisement of the land, the selection of beneficiaries and the management of lease agreements should be fair and open to public scrutiny. In the selection of beneficiaries, preference should be given to the disadvantaged and the poor. Care should, however, be taken to ensure that the land is used productively and in a sustainable way. In the case of agricultural land, it would be appropriate to give preference to people with farming experience, including farm workers, labour tenants and small farmers.
Rental payable should be market based, although there should be flexibility in the application of this general rule in line with the 'sunrise' subsidies proposed in
Section 4.5.9.
It is clear that the effective implementation of the policy proposals made above, rests to a significant extent on the availability and accessibility of information regarding the location, current and potential future uses and value of state and public land. Without such a data base, the current confusion, lack of coordination, and missed opportunities for strategic land use decisions will continue.
A register of state land is being compiled. It draws on information within the Department of Land Affairs, including that which can be drawn from the cadastre. It will also include relevant information that will be collected during the compilation of the Register of State Assets by the Department of Public Works. The development of the DLA register of state land is being done in such a way that changes in land use and disposals can be recorded and the database regularly updated.
At present, there is no legislation, apart from the directive in the Restitution of Land Rights Act, that a register of public land should be established, that requires parastatals and local authorities to publicise information on their land assets and uses.
5.10 Parastatal land
There are many parastatals in South Africa, each governed by their own founding statute and with differing mandates and responsibilities to government. All of these bodies hold land. In some cases their land holdings are extensive and spread throughout the country in both urban and rural areas. Transnet, for example, owns in excess of 50 000 properties. There is no easy means of accessing information on parastatal land, its location or planned usage. In many cases, parastatals themselves may not be aware of the full extent of their land holdings.
It is proposed that the state land inventory be broadened to become an inventory of public land, and that parastatals will enter details of their land-holdings into it.
The incorporation of parastatal land into the public land register, as discussed above, will facilitate public access to a key area of information regarding public land. It will make it easier to identify parastatal land that is not intended for core business purposes and that may be able to be accessed for a range of development purposes, including for land reform purposes.
5.11 Local authority land
Local authorities, like the parastatals, are major holders of public land. This land is often well-located and would be suitable for social infrastructure. In many cases, over the past years, local authorities have tended to use their land as a source of revenue, and have drawn upon provincial land assets for low-cost housing and other social purposes.
National schemes which assist local authorities to acquire commonage for agriculture for their poor residents, or land for affordable housing, will require that, where possible, local authorities also contribute to the proposed developments. Local authorities will be asked to demonstrate their good faith in this regard by entering their land holdings in the public land register.
The commitment by national government to create a land administration and land reform implementation capacity at the most decentralised level of government possible implies the establishment of measures to support the process of building a capacity to deal with land issues at a local government level. This is referred to in the institutional arrangements for implementation in the following chapter.
Land Administration
The problems in the current land administration system have been described in Section 3.6. In the long run and as part of a tenure reform programme, government is committed to the eradication of the permit based system of land administration and land control, and to the transfer of land that is in the nominal ownership of the state, to its real owners. In the interim, the administrative problems that have been identified must be addressed. In order to do this, an interim approach has been developed in consultation with the Provinces. This strategy is outlined below. It deals with both an interim approach to permit based systems as well as clarifying the roles and functions of, and relationships between different spheres of government in relation to identified categories of land. It is based on the guiding principles set out below.
5.12.1 Guiding principles
The principles guiding an interim approach to land administration are as follows:
Permit based systems of land administration and control should be abolished as part of the tenure reform programme which is a major element of the national land reform programme.
The reform of land administration legislation should address the desirability for there to be uniform legislation governing township establishment and other development within a province. In other words, all legislation and mechanisms for township establishment and other developments should apply right across the province. This means the probable replacement of former homeland and other apartheid laws by legislation that is applicable province-wide.
The provinces have land of their own that requires management and administration, and also have a responsibility for certain land administration matters that are assigned or delegated to them. In carrying out these responsibilities, they have a responsibility to ensure that the rights and interests of existing occupants of state land are recognised and protected.
The national government has a similar responsibility with regard to land which it administers. When a transfer of ownership of national state land to a province or other party is contemplated, the Minister will take steps to ensure that township establishment or other development does not violate any rights or interests of occupants of the land.
The present laws applying to former homeland and SADT areas contain a mix of ownership and governance functions. This derives from the system of trusteeship which located the state as both the owner and the administrator of land. It is necessary at all times to distinguish clearly between those functions which arise from ownership and those which arise from responsibilities for governance.
Schedule 4 of the new Constitution provides that development functions on this land are in the first instance the responsibility of the provinces. Land use planning and control measures are similarly provincial matters exercised within the framework of national norms and standards.
Section 239 of the interim Constitution vested land in national or provincial governments, depending on the function for which it was used or intended to be used on 27 April 1994. The purpose of the certificates issued in terms of section 239 and in terms of item 28 of Schedule 6 of the new Constitution is to enable the land to be registered in the name of the appropriate government. This is necessary in order to make it possible for the land to be legally transferred.
The state carries out various functions of governance in relation to land. The fact that a particular government performs functions in relation to land, does not necessarily require it to be the owner of that land. National government may have governance responsibilities in relation to provincial state land, other public land and private land. Provincial governments may have governance responsibilities in relation to national state land, other public land and private land.
The ownership of state land must be identified in relation to the function for which the land is used, and whether the land is held by the state on a nominal basis on behalf of others. It is possible for both tiers of government to have responsibilities in relation to the land, regardless of whether it is owned by provincial or national government.
The above guiding principles delineate the separate and joint responsibilities of different tiers of government in relation to land administration. They identify key areas where co-operation between the different tiers is essential. They emphasise that the interests of the occupiers of land must be carefully considered in making decisions.
The eradication of the permit-based systems of land administration, as part of the tenure reform programme, will ensure that the laws and regulations that govern the lives of black people, in the former homeland areas and on former SADT land, will be no different to those that govern other South African residents. Attaining this will take considerable time. The proposed interim solution that is set out below is both a holding measure and a step along the way to achieving the transition. Interim measures must neither exacerbate existing problems, nor impose new administrative systems that will themselves require substantial capacity building in the short run.
5.13 Interim strategies to resolve land administration problems
The following interim strategies have been developed for the administration of land in proclaimed towns inside the former homelands and on former SADT land, as well as for rural settlements and villages in these areas. The strategy is intended to bring a degree of administrative certainty and constitutional compliance to a situation which until now has been chaotic and confused. Its successful implementation is dependent on a close working relationship between national and provincial government in this regard.
5.13.1 Proclaimed towns in the former homelands and on former SADT land
Proclamation R293 of 1962 and its derivatives are the key pieces of legislation regulating the administration of these areas. The proposals made here are in relation to its provisions, and bearing in mind that procedures laid down in the various pieces of legislation may vary from area to area.
Division of functions: The functions related to establishment and administration of townships, as well as the lease and disposal of land within townships, vest in the provincial governments and are exercised within the framework of the national norms and standards applicable to these functions. The Department of Land Affairs is responsible for functions related to the registration of deeds of grant and rights of leasehold. The provincial governments are responsible for the preparation and lodging of the documents which are necessary for registration to take place.
Assignment of functions: The regulations governing the development and administration of townships have been assigned to provincial governments with the exception of the regulations applicable to the former homeland areas in the Free State and Gauteng and the regulations issued under the KwaZulu Land Affairs Act, 1992. These outstanding assignations will be carried out.
Rationalisation of legislation: There is a need to rationalise legislation and bring the laws that apply in these areas in line with the rest of the country. This could be done through the repeal of R293 and its replacement by existing laws such as provincial township ordinances, the Development Facilitation Act and other legislation. Alternatively, it could be done through the promulgation of new legislation as is currently the case in the Western Cape and Gauteng. Provincial Governments are responsible for making such changes. The Department of Land Affairs has a responsibility to ensure that the rights in land which follow from this can be registered in terms of laws of general application. It is also responsible to repeal the regulations dealing with the registration of deeds and grants and leasehold rights, where this is required.
There are some important land ownership issues to be resolved in the proclaimed towns in the former homelands and on former SADT land
Section 239 certificates: The sale of state-owned land in these townships is restricted by, inter alia, the fact that for the most part Section 239 certificates have not been issued in these areas. The identification of the areas for which this must be done is a priority activity. The issuing of these certificates should be linked to an agreement between national and provincial government to ensure that those properties in townships, which are used for national state domestic purposes, are transferred back to national government when township registers have been opened and title can be transferred.
Transfer of land for township establishment: Provincial governments need to identify state land earmarked for township establishment. Where this land is certified as national government land, submission should be made for the transfer of this land from national government to provincial or local government. In addition, provincial governments are responsible for ensuring that municipal land, public spaces and, where appropriate, properties available for lease or sale are transferred to the local government. Legislation is being prepared to facilitate this by making it possible to transfer these properties to local authorities by way of an endorsement on the title deed.
Rights of occupiers: In the past, township establishment has taken place, without consent, on land which is registered in the name of the state, but which in fact belongs to individuals and communities. In this process, the rights and interests of these occupiers have not been adequately protected. This should not be allowed to take place in future. If it does, the provincial governments responsible are liable for compensation of the owners. In addition, before national government land is transferred for township establishment, the Minister will need to be satisfied that township establishment does not violate any rights or interests of occupiers on the land.
Disposal of land: Provinces should have the power to dispose of land which they own. To achieve this they can either enact their own legislation, or have the functions in terms of the State Land Disposal Act, 1961, as it applies to the former homeland areas and former SADT land, delegated to them under that Act. Provinces could request the same delegation in relation to provincial state land outside these areas from the Minister of Public Works.
5.13.2 Rural settlements and villages
Given the land administration issues set out in Section 3.6 and Box 3.2 (regarding Proclamation R188), the proposed strategy is as follows:
Land allocation
Proclamation R188 of 1969 and its derivatives will be amended so as to ensure that constitutional requirements for equality, due process, and representation in decision making are observed in the regulations. In doing this, an attempt will also be made to achieve greater uniformity in the various versions of R188 within and possibly between provinces.
In recognising the extent of administrative breakdown and the realities on the ground, the requirement for compulsory PTO registration will be done away with, except where it is locally desired and where provincial and local government have the capacity to implement it.
Where the system continues to apply, the rules for the allocation and registration of allotments should be amended to embody gender equality, the family as the unit of occupation and the right to inheritance.
Where the PTO system is not enforced, existing allocation processes should be allowed to continue subject to a minimum set of rules in terms of democracy, equality, fair process and the protection of existing rights.
Where the allocation process is abused, provision will be made for lodging of complaints and for the development of an institutional and legal capacity to act effectively in regard to these. In this regard, the location of personnel dealing with land issues at a district council level, would facilitate the receipt of complaints and dispute resolution. Provision will also be made for an appeal mechanism to deal with cases where agreement cannot be reached.
The regulations will be repealed as soon as tenure reform legislation is introduced.
Land use: The design of an appropriate mechanisms to implement land use control measures at a local level and outside of urban areas will be a priority focus of the Development and Planning Commission provided for in the Development Facilitation Act. This will result in a rationalisation of legislation that will in all likelihood mean the repeal of these sections of the regulations. In the interim, the regulations will be amended to achieve greater uniformity in the application of the different versions of R188. Provision will be made for greater community participation in land use planning and control. The location of personnel dealing with land issues at a district council level will facilitate the development of a land use planning capacity in these areas. Consideration will be given to the establishment of land use planning officers at provincial and possibly at lower levels of government.
Division of functions: The national Tenure Reform Programme has as its key area of concern, the rights in land of the people living in these areas. National government has a responsibility for these areas in relation to this programme.
The conflation of ownership and governance functions in the legislation applicable in these areas, means that government is often carrying out functions that are not its inherent responsibility. The Tenure Reform Programme will separate these functions, so that ownership can be transferred from the state to the communities and individuals on the land. This will allow government to carry out its governance functions. The owners of the land will assume full responsibility for ownership responsibilities that include land allocation. Until this happens, however, the state has a residual responsibility for the administration of this land as nominal owner. The responsibility for the allocation functions is vested in national government until ownership is transferred. Responsibility for the registration of land rights in these areas also vests in national government.
Adopting the same approach as for proclaimed townships, where land in these areas is used for national government functions, responsibility for its administration rests in national government. Where the land is used for Schedule 4 functions, the provincial government is responsible for administering the land, and where appropriate, for transferring this responsibility and/or ownership to local government. The administration of land use planning and control measures in regard to this land is also a provincial matter, subject to national norms and frameworks.
Where vacant land in these areas is available for redistribution purposes, the land allocation function vests in national government.
Assignment of functions: All the Schedule 4 functions in the R188 type regulations with the exception of those applying in the former Transkei, Ciskei and KwaZulu Natal have been assigned to the provinces. The President will be requested to assign the outstanding regulations, subject to such amendments as he deems necessary for effective implementation. It is recommended that the proposed amendments described in Section 5.13.1 be made.
Delegation of functions: The non-Schedule 4 functions in the R188 type regulations have only been delegated to the provinces as they apply in the former Transkei and Ciskei and outside the former homeland areas. Once the regulations have been amended as discussed above, the functions should be assigned or delegated to provincial, district or local government.
