The Department of Rural Development and Land Reform (DRDLR) held a Land Tenure Summit from the 4 to 6 of September 2014. Given the controversial policy and legislative programme of the department stretching back to 2003, this was never expected to be a routine summit. However, even given the controversial issues at stake, the picture of what the future potentially holds is disturbing for the 17-20 million South Africans that live on communal land should the Communal Land Tenure Policy (CLTP) be adopted.

Communal Land Tenure Policy

Section 25 (6) of the Constitution (1996) compels government to address insecure land tenure of people and communities caused by apartheid discrimination. The Communal Land Tenure Policy was developed by the DRDLR in response to the land tenure insecurity of millions of South Africans residing and utilising natural resources on communal land in the former Bantustans. It is likely to be a policy framework for legislation on communal land tenure that would replace the Communal Land Rights Act (CLRA) of 2004, which was struck down as unconstitutional in 2010. However, the policy has disturbing similarities with CLRA. It also aims to distribute land in the outer bounds of communal land to tribal councils by allocating title deeds to them. The policy (see diagram right) further contains the following proposals:

1. Traditional councils are based on the old boundaries of the Bantu Authorities Act of 1951 as outlined in section 28 (4) of the Traditional Leadership and Governance Framework Act.
2. Traditional councils are to have full ownership of communal land (in the outer circle of the diagram) through title deeds.
3. Individuals and families will receive “institutional land use rights” on the communal land that will be owned by traditional councils.
4. Traditional councils will be responsible for investment and development (including mining, infrastructure, tourism and manufacturing) as well as natural resources (such as grazing and small scale agricultural land and forestry) on communal land.

State Land Grabbing?

A central question that springs out of the initiative to transfer title deeds to traditional councils, is that of the powers and functions of traditional leaders. The CLTP is based on the rationale of ’rebuilding what was destroyed‘”. But this presupposes that traditional leaders actually owned communal land and that they allocated this land to their ‘subjects’. Implicitly what traditional leaders could give, essentially as largesse, they could also take away. But these assumptions are completely incorrect. Indigenous knowledge systems, vernacular memory and scholarly research all concur on a very different picture of the customary role of traditional leaders in communal land settings. Traditional leaders never owned communal land – they do not own it now, and certainly did not own it in pre-apartheid and pre-colonial eras. Where households lived on communal land, the use rights to that land vested in them. In the case of grazing land, the community as a whole had rights to that land.

At present, the state nominally holds communal land in trust but the land rights still rest with households and communities. The function of the traditional leader in relation to land is to allocate it to households and act as an arbiter in land disputes. To give freehold title of communal land to traditional leaders would be to weaken the communal land rights of individual households and communities. Moreover it would fundamentally change the dynamics of the land administration role of traditional leaders by empowering traditional leaders’ control over land and discretionary ability to allocate land far beyond their customary role. In effect the state, through the CLTP, would be engaged in a massive land grab that would benefit traditional leaders.

Rural Elites and Investment

According to the CLTP, traditional councils will be given the responsibility for managing and securing investment and development on communal land for the benefit of people and communities residing in communal areas. However, there is already existing evidence of some traditional councils using communal land to enter into investment deals in mining and tourism that exclude local inhabitants and benefit local elites. This negatively affects communities’ land tenure, and undermines access to communal land and natural resources critical to their livelihoods. It is disturbing that the DRDLR has proposed this role for traditional councils without checks and balances to protect communal land tenure and rural livelihoods through transparency and accountability from traditional councils and free, informed and prior consent for investment deals from inhabitants of communal areas. In effect, by proposing that communal land should be transferred to traditional councils, government would be dismantling the inherent checks and balances in the customary tenure system.

A Fool’s Errand: Aligning the Public Service and Traditional Councils

Raising the need for accountability, transparency and responsiveness through checks and balances brings to the fore the contradictions that the proposed CLTP simply ignores. The CLTP proposes taking a public asset – communal land that the DRDLR is holding in trust – and legally transferring it to traditional councils. Communal land governance under government occurs within a constitutional framework of human and land rights which are democratically governed through a public service. Public servants that fail to execute their roles to achieve the constitutional framework of human and land rights or fail to exercise administrative fairness, accountability, transparency and so on (in line with constitutional requirements of public administration) can be sanctioned even to the point of dismissal. However, traditional authorities are under no constitutional obligation for fairness, accountability and so on as they are not part of the public service.

So can traditional authorities be sanctioned for not executing their proposed functions in the CLTP in line with constitutional requirements of the public service? Can they be dismissed for these kinds of failures? This goes to the heart of the question of administrative justice for communities living on and dependent on communal land for their livelihoods. Are rural communal land inhabitants to become subjects to be granted land at the discretion of traditional councils? Or are they to be afforded policy and legislative protections as citizens to enjoy their constitutional rights related to land, natural resources and livelihoods? As it stands the CLTP falls well short of providing those protections. However, even if an attempt to remedy this shortcoming were to be made through a legislative reform agenda it would surely fail. . The two systems of governance are fundamentally different. Attempting to integrate the traditional system into the constitutional one would be a fool’s errand.

Ignoring the Problematic of Traditional Councils

A traditional council according to the Traditional Governance and Leadership Framework Act of 2003 can only be legally constituted after it has held elections to elect 40% of its membership of which a third must be made up of women. Eleven years after the Act was passed the majority of traditional councils have failed to meet the one year legislative deadline for legal compliance even though there have been several extensions. Consequently, the majority of traditional councils are not legal institutions and thus their decisions hold no legal weight. Land grabbing notwithstanding, government clearly cannot transfer public assets to traditional councils with no legal standing.

The Politics of the CLTP

So why is there this insistence on the transfer of communal land to traditional authorities? It featured in the unconstitutional CLRA and now it has re-appeared in the CLTP. Moreover, why is there this insistence on transferring communal land to traditional councils without any effort to deal with questions of administrative justice and reform of traditional councils.Why is there no effort to align traditional councils to constitutional principles that guide the public service in managing public assets and providing public goods and services? Even if such a reform agenda would end in failure, why does a policy supposedly developed in good faith not even address the reform question? Is this a poorly thought out policy proposal? Or is this a well thought out attempt at creating precarious communal land rights for narrow political ends?

Given the policy engagement that has happened between government, communities, CSOs and research institutions over a ten year period since the content of the CLTP was first advanced – and strongly resisted – through the CLRA; it seems the latter is likelier. The CLTP seems to be an attempt to maintain precarious communal land rights in the former Bantustans whilst securing the loyalty of traditional leaders through an expanded role in rural investment and development, and transfer of land. This is likely to facilitate a deepening of already existing practices of urban-rural elite accumulation – to the exclusion of the rural majority – in mining, tourism, infrastructure development and natural resource exploitation. In return rural elites will be expected to secure the rural vote amongst the millions of eligible voters in communal areas through using land allocation as  carrot and stick. So the lack of checks and balances in the CLTP’s proposals is likely a purposeful strategy to  create sufficient discretionary power for traditional leaders to select beneficiaries and to side-line those that threaten the rural vote block.

This arrangement is in line with the clientelist model that typified the use of traditional leaders by the apartheid states. The authority of traditional leaders came from the state rather than from communities hence some traditional leaders often implemented unpopular apartheid policies that were against the interests of the people they governed. The practices of traditional authorities in many cases also overstepped what was customarily accepted as the powers and functions of traditional leadership. Over time this led to the erosion of the institution of traditional leadership in many areas as there was a divergence in the interests of traditional leaders and the people they governed. Consequently, the CLTP will become a source of conflict between rural elites and the majority as people will seek to defend their communal land rights and livelihoods against this state land grabbing exercise.

The CLTP places rural communities in an impossible situation. Do they accept subjection or do they resist against class forces with far dominant resource capacities? Do they continue residing in rural areas and accept insecure land tenure or do they migrate to urban poverty traps?