William Beinart

African Studies Centre

University of Oxford

 

Rough draft notes for purpose of the discussion, I have not had a chance to go back and check sources; there may be some inaccuracies. – Please do not cite

 

African Customary tenure and the courts

Questions of land tenure are of great importance in South Africa at present and land issues as a whole have come to the fore, not only because land reform is perceived to be slow and relatively unsuccessful but because President Zuma has reopened the land restitution process.

Land tenure in the former homelands, where perhaps over 40 per cent of the African population still live, and where others have connections, are particularly significant for two reasons.  The security of the forms of tenure under which individual families occupy land is not entirely clear.  These area include people who are amongst the poorest in South Africa and it is important that their rights are not shouldered aside.  Secondly, although many people invest a great deal in their houses on these sites, sometimes in villages without services, the form of tenure does not seem very conducive to investment in agriculture or related productive activities.  In general, the government and many others perceive upgrading of tenure, or tenure reform, to be important both in order to secure stronger rights for rural families, and to facilitate investment and development.  Tenure reform has been on the agenda since 1994 as one of the three key planks of land reform.  Relatively little progress has been made through legislative routes.

My main concern is to explore a few cases in which the courts have contributed to define or modify forms of customary, non-private tenure and in this sense have indirectly been engaged in the process of tenure reform.  They have done so with reference to legislation and the constitution but not explicitly with reference to policy developments, and perhaps not in any planned way.   They have done so both ‘positively’, through clarifying and in some respects redefining customary tenure, and ‘negatively’, through declaring the Communal Land Rights Act of 2004 unconstitutional.

The key judgement in this respect was by the Constitutional Court   in Alexkor versus Richtersveld Community (2003) – a case contested to resolve issues that arose under the implementation of the Restitution of Land Rights Act of 1994.  The court developed a legal concept that is now called ‘communal indigenous ownership’.

The idea of ownership of land in African customary tenure

The form of occupation in the former homelands was generally referred to as communal or customary tenure.  Academics often qualify this by noting that customary tenure had been amended by countless government proclamations in various areas, so that customary was a misleading term.   In a limited number of districts in the old Cape Province, a form of individual, but not private, tenure was introduced under the Glen Grey Act (1894) – as well as some previous and subsequent proclamations.  The significance of Glen Grey for land tenure has often been exaggerated in that this legislation was only introduced in about half of the former Ciskeian districts, and seven of the 28 Transkeian districts, and it was not thoroughly implemented in some of these.

Elsewhere, proclamations also provided for land registers and certificates of Permission to Occupy.  Registers were seldom (if ever) effective and PTOs were unevenly issued.  In the Mpondoland districts where I have done most research, land registers were not kept and PTOs were not issued.  In the pre-homeland era, there was a reasonably good record of tax-payers and in general tax-payers had a right to residential and arable lands.  Those with such allocations had to pay taxes.  But this was not a land register and to my knowledge – after some faltering starts in the 1920s – there was no central record of residential and arable plots.  At a local level, knowledge of specific allocations was oral.  Perhaps there were more systematic land registers, and issuing of PTOs – at least for a time – in Ciskeian districts and on ‘Trust’ land that was purchased for the extension of the reserves and homelands.

In his book on Customary Law in South Africa (2004), Bennett notes two different historical tendencies in thinking about African customary land tenure.  On the one hand, external commentators sometimes used the idea of ownership because this was so central to European concepts, even when this was inappropriate.  On the other hand, colonial governments, and perhaps especially those with settler populations, distinguished African systems of tenure from ownership, emphasising the limits of individual rights, because this justified the appropriation of land.  The term communal was often used to denote such limits.  Bennett criticises the use of this term if it is taken to mean that individual families had weak rights to land.

In her ethnography of the Mpondo, Reaction to Conquest (1936), Monica Hunter (later Wilson), who became one of South Africa’s pre-eminent anthropologists, commented: ‘in the recognition of rights over certain arable areas, the Pondo approach more nearly the European conception of ownership’.  (113)   In a recent survey of interwar ethnographies, Peter Delius finds similar ideas reiterated in respect of residential sites and fields. (2007 in Claassens and Cousins, Land, Power and Custom).  I don’t think that anthropologists were saying that African ideas were the same as European concepts of ownership (and we should remember that such concepts also varied considerably in different parts of Europe.)  They were generally very aware of cultural difference and they were using the term as an analogy.

They also generally noted that different forms of land were governed by different rights.  Individual family rights seemed to be very strong over residential sites and adjacent gardens.   Arable fields, usually situated at some distance away, were also held securely by families although there were certain conditions under which they could be forfeited.  Individual women tended to have acknowledged rights over arable lands in their role as wives in a larger homestead.  Families could exclude others from access to and use of this land.  Such land could also be inherited.   However, it could not generally be alienated by families.  Beyond the residential sites, gardens and arable fields, the bulk of land was communal pasture and bush or forest.  Here there were rights to usage as part of a local community under a particular local political authority, but not individual family rights to exclude others.

My sense of the South African proclamations and the references in the old Native Affairs Department archives is that they did not use the concept of African ownership.    Many of the land proclamations passed in the late nineteenth and twentieth century asserted the ultimate authority of the colonial and Union state over land, although it is interesting that

they generally recognised all of the previous allocations and grants made – in effect they recognised the customary system until such time as it could be comprehensively changed.  Most of the planned changes were not introduced.  The Betterment proclamations gave the state considerable powers to alter some aspects of tenure – and in particular the layout of land.  I would argue that they did not, however, fundamentally affect customary rights.

I need to do a great deal more research but I suspect that the recent resurrection of the idea of ownership as an analogy for describing  African customary land tenure developed not as a mischaracterisation and misunderstanding, but as a political argument about the strength of such tenure.  A. J. Kerr, professor of law at Rhodes and son of the former principal of Fort Hare, picked up this idea of ownership from Monica Hunter, and strongly emphasised the strength of rights of families to land in customary systems.  He wrote one of the few overviews of The Customary Law of Immovable Property and of Succession. Parts were first published in 1953 and it would probably be worth going back to this text to examine his language; I have used a consolidated edition from 1990.  Geoff Budlender, who was involved in land cases for the Legal Resources Centre, and in defending communities against forced removals, wrote an article in 1991 which in passing emphasised that it was important to redefine African land rights, away from a loose notion of communal tenure and towards a stronger notion of ownership, because this would be valuable in strengthening and defending such rights.   I understand that this approach was developed by the LRC and had been clarified and defined by the time of the Richtersveld case (with Henk Smith and the LRC as attorneys ad Wim Trengrove as advocate).

The nine Constitutional Court judges in the Richtersveld case (with Chief Justice Chaskalson) accepted and adopted this idea by using the word ownership to describe indigenous or customary land right rights.   They talked of the form of rights and occupation as being “akin to that held under common-law ownership.”   They concluded ‘We have found that the Richtersveld Community held ownership of the subject land under indigenous law’,   While they did not specifically use  ‘communal indigenous ownership’  (check), this term was being circulated within a couple of years.

Further development of the idea of ownership in court cases

I have been involved in two land restitution cases in Bizana district, Mpondoland, Transkei, in which the strength of land rights held by families in what used to be called communal or customary tenure has been one of the central issues.  Both were long-running land claims made under the Restitution Act of 1994.  Both proved difficult to settle, partly because of the conflicting parties involved and partly because the Eastern Cape Land Restitution Commission did not seem to have the capacity to take a strong lead.

The first was Hlolweni (hearing 2009 and judgement 2010) and other adjacent communities who lost about 12,000 ha.  The land was appropriated by the former Transkei government to establish a sugar plantation and sugar smallholder scheme within the former homeland in the late 1970s and early 1980s.  This case was decided by Fikile Bam, Chief Justice of the Land Claims court, sitting in the Tropical Nites Theatre at the Wild Coast Sun in coastal Bizana. The judgement was in favour of the c. 900 claimants.  Alan Dodson, who had long experience in land cases, was the lead advocate for the community.  The second was Mgungundhlovu where about 700 ha had been taken over by the Transkei government at the same time and leased to the company that built and ran the Wild Coast Sun casino and hotel.  This was settled in 2014 shortly after the site inspections, but before the case proper had begun (in the Ebenezer Church hall, Elurholweni) and without a judgement.  The community of 106 claimants gained a favourable settlement, recognised by a court order, which gave them ownership of all of the land they had lost.

In the Hlolweni case, Judge Bam considered that the Richtersveld case set a precedent and confirmed that the claimant communities had ‘communal indigenous ownership’ over the land.  He used this term.  Their claim to the land over-rode any rights that the Transkei government may have asserted, and also by implication negated the power of the Paramount chief, and local chief, to alienate such land without the consent of the communal indigenous owners.

This judgement was an affirmation of the Richtersveld case.  However, there were significant differences between the Richtersveld and Hlolweni cases.   Aside from the differences in the background of the claimant communities, and the specific histories and contexts, the notion of community differed.  Richtersveld restored land to an undifferentiated group or community of Nama/Coloured people.  The whole community regained rights over the area of land taken by the government in the 1920s and mined by the Alexkor company.  As far as I understand, the Richtersveld judgement did not differentiate between chiefs and people, or identify any subset of claimants within that community.  Individual claimant families did not have to show that they had occupied the land before the 1920s or that they had specific rights to the land that was appropriated.  The land was not restored to a list of individual claimants.  The whole of the Richtersveld community gained communal indigenous ownership over the whole of alienated land – even though it was only a portion of what was recognised as their historic land.

In the Hlolweni case, the claimant community was not a whole undifferentiated group of ‘Imizizi’ (the local chieftaincy) or a larger ‘community’ of Mpondo, but a list of about 900 individual listed families who had been specifically dispossessed by the alienation of the land.  The judgement was in favour of the specific group of claimants.  Judge Bam in certain respects refined the content of communal indigenous ownership to mean a particular set of people– although I am not sure he acknowledged this in his judgement.  (The reallocation of this land has been particularly difficult and most of it remains unsettled, although it is being used for grazing.)

In both Hlolweni and Mgungundhlovu, the chiefs at various levels had co-operated with the Transkeian state in agreeing to the alienation of land and the forcible removal of people who had previously occupied the land.  In both cases, Botha Sigcau, president of Transkei, paramount chief or king of Eastern Mpondoland, and head of the regional authority of Qaukeni, had agreed to the alienation of the land.  He also agreed to an even more sizeable alienation in area for the Magwa tea estates in Lusikisiki district.  (Although fewer people were involved.)   In both cases the local Tribal Authority chief (of ImiZizi and AmaDiba respectively) had agreed to the alienation and clearing of land.

In the Hlolweni case, Judge Bam effectively ruled that the chiefs and former tribal authorities did not have the legal power to alienate land without the consent of those who held that land in communal indigenous ownership.  (It had to be shown in the court case that the community of individual claimants did not consent and this was also expected to be a significant point in the Mgungundhlovu case.)

These points are important for contemporary South Africa because chiefs and former tribal authorities are reasserting local leadership, in parallel to democratic local government institutions, or claiming rights over land and development initiatives on behalf of communities.  This could include attempts to alienate land held in customary tenure.   There seems to be a legal defence for those who hold land in customary tenure now, although I do not know if it has yet been tested in a wider range of cases.

Moreover, when land restitution was instituted, the involvement of chiefs, while not precluded, was not encouraged.  (I researched a claim in East Griqualand in 1997 where the claimants attempted unsuccessfully to assert a chieftaincy.)   The great majority of claims were by individual claimants or smaller communities – by collectivities of individual families.  President Zuma seems to be encouraging chiefs to lay claim as representatives of tribally defined communities in the new round of land claims.  These judgements suggest that the individual families on the land should have clear rights beyond those that might be gained by chiefs as representatives of people.

Although these issues were not argued or tested in the Mgungundhlovu case, the 106 claimants claimed communal indigenous ownership.  We did research to show that the individual claimant families had lived in the alienated area.  We could show the actual location of the homesteads of many of those individual families and in fact this was done for a few specific cases during the site inspection.  The claim was on behalf of those families alone, and not the broader Amadiba chieftaincy or any other collective entity.  This is particularly important because the settlement was so favourable.

Limits to the notion of communal indigenous ownership and its implications for tenure 

Richtersveld and Hlolweni represented a significant development of customary law and Mgungungdhlovu perhaps indirectly recognised these judgements in the settlement and the court order.   The question remains as to exactly what communal indigenous ownership means and whether it can be developed further.  The judgements so far are potentially good for restoring African customary land within the legal framework of the Restitution Act.  They are probably good for contesting any further alienation by chiefs, government or private interests.  They are good for defensive purposes – for the protection of those with rights to land.

However, they are confusing for any upgrading of tenure.    There is no clear direction within these judgements that recognises rights of individual families to specific pieces of land.   The named claimants achieved a collective right to the land as a community.   Their ownership rights are vested in a CPA that will manage the whole area.  They did not get rights to return to their own former sites.  In the Mgungundhlovu settlement, the CPA will acquire the ownership of the land as a whole.  The claimants did not acquire rights to return to their own family holdings.   About half of the area that was alienated is directly occupied by the casino, hotel and golf course.  These will continue to operate.  The claimant community will get a share in the casino.  They cannot use this land as individuals.  They have also accepted restrictions on the use of the rest of the land for about 20 years.  This precludes the return of individual families to most of the rest of the land.  It is unlikely that the CPA would agree to the return of any families to their old lands because it would be so unfair to the many who cannot return.  The Community committee, from which the CPA will be formed, intends to manage the whole of the land for the benefit of the claimants.

As I understand the judgements, communal indigenous ownership has not yet been interpreted to establish the right of individual families to individual pieces of land.  Perhaps this has been implied and perhaps the concept could be extended to protect a single family’s claim.  Perhaps there have been cases of restitution (Chatha?) where individual families have returned to their old sites on land held in customary tenure.

Some further issues rise.  Do these rulings, by relying on the idea of communal indigenous ownership, give all of the descendants of the claimant families a right?  In Richtersveld, for example, will anyone accepted into the community be entitled to use the land?  Will the number of individuals entitled to a share in the Mgungundhlovu CPA continue to increase?  Are communities infinitely expandable?  For me this is one of the major problems of restitution settlements and CPAs as a whole – and potentially of the idea of communal indigenous ownership.

Are all African settlements held in communal indigenous ownership?   Would this include recently established informal settlements?   For example, those removed from their original sites in Hlolweni and Mgungundhlovu generally found other smaller sites, crammed in amongst existing neighbouring settlements or excised from communal pasturage.  Their sites were smaller, often less favourable, and they often found only residential plots with small gardens.  Have they established secure communal indigenous ownership in the c. 30 years in their new places?   It would be hugely unfair if such families, who had already been forcibly removed, were not secure in their new places.  What are the tests?

In the Richtersveld case, evidence was led to show deep historical occupation and ownership because it had to be proved that the community held the land before the 1920s.  The Constitutional Court also ruled that annexation did not override communal indigenous ownership.  Research for Mgungundhlovu similarly showed that the annexation of Mpondoland (1894) did not remove land rights and that some of the families in the claimant community had been in occupation for over a century.

But I don’t think that such long time frames are essential in establishing communal indigenous ownership.  In some other areas, PTOs may establish secure land rights  – do these also fall within the concept of communal indigenous ownership or are they solely governed by the relevant legislation and proclamations.  This is so diverse and so often amended that there are probably many different versions of it nationally.

In areas without PTOs, perhaps certain procedures in allocation could be used to confirm these rights.  In former years, land allocation was a fairly formal process requiring agreement of the local community, sanctioned by the headman and his council, and reported to the magistrates’ office.  However, I doubt this is universal and in the areas of Mpondoland that I know, local families have an important say – especially in the extension of existing sites.  In the Mgungundhlovu case, the state did not find sites for most removed people.  They relied on the generosity of others, sometimes with the support of a sympathetic local sub-headman.  They now live in what has effectively become a dense settlement.

And what about informal settlements and cases where people have invaded land?.  My sense is that the ANC government and local state officials effectively recognise most of these invasions.  Do they hold their land in a form of communal indigenous ownership?  What are the mechanisms by which they may begin to accumulate rights?  To what extent do they rely on political assertion rather than rights at present?

The courts are probably not a very good route for defining these issues.   (In the presentation I will try to mention a couple of other recent cases – Bakgatla that have implications for land rights, chiefs and CPAs.)  Relevant court cases may not accumulate – the law would move forward by chance.  The priority for lawyers is often to get the best for their clients rather than to define and clarify the law.  Judges may not be adventurous and they may not follow the direction that land activists would like.  It may be difficult for them to move from the collective notions involved in the current concepts of communal indigenous tenure to confirming stronger individual rights.  That is certainly the route I would favour, especially for residential and arable sites.  Creative thinking and innovative practice is needed both to protect individual rights to residential sites and to stimulate investment in agriculture in former homeland areas.  It is difficult to see a route short of private ownership akin to that in the country beyond the former homelands.  However, by no means all support private ownership and the state may not have the capacity to formalise ownership of millions of sites in this way.

The legislative route is probably more suitable, but also disputed.  I do not know enough about the current planned legislation to comment but look forward to the discussion.  It may be that the courts are moving in a direction away from entrenching traditional authority over land while the government is moving to accommodate or even strengthen chiefs.   Some may want to see ‘a living customary law’ and hence a minimum of legislation.  But living customary law is by definition changing and does not provide much certainty through which people could assert land rights.