The shortest chapter in both The Constitution of the Republic of South Africa Act No. 200 of 1993 and the 1996 Constitution deals with traditional leadership. Although the institution of chieftaincy [[i]] is accordingly recognised, there is no mention of communal tenure, unless a deduction is to be made from reference to customary law. However, the range of issues that are linked to land and traditional leaders continue to be the focus of debate among especially the anti-land reform lobby. The present paper argues that the focus is used to avoid and derail the debate on the redress of the unequal racial land distribution, the essence of the apartheid spatial and economic landscape.

Problem outline

The denial and understatement of the history of land dispossession is dangerously threatening the opportunity for reconciliation, stability and economic prosperity. Whilst the 1996 constitution ensured racial reconciliation on the one hand, on the other it created serious conflict within the black population. Former bantustan residents, the face of apartheid, are made to share and even fight over the limited resources. Similar to all of Africa, the natural population in these areas has been dramatic. However, the situation in these areas has been exacerbated by the apartheid forced removals and the continuing evictions by white landowners. The absence of media front page protests for service delivery should not deceive anyone of satisfaction.

The establishment of bantustans was at first determined by the labour needs of the country’s capitalist economy; and later as political pressure increased, they became the government strategy to deal with the denationalisation of Africans. Land dispossession was effected through military and legal means culminating in the infamous 1913 and 1936 Land Acts.

Chiefs traditionally occupied a central position in African life; a status that guaranteed them economic and political power. The white settler governments capitalised on the people’s loyalty to chiefs. Thus, on the one hand they made them tax-collectors in the coercion of Africans into wage labour; whilst on the other hand their chiefly power was eroded through land dispossession. The final capitulation of chiefly power was The 1927 Native Administration Act, whereby chiefs became servants of the white officials, magistrates and chief commissioners, of the Department of Native Affairs under the white supreme chief.

The expectation from the political dispensation in 1994 was for the apartheid created reserves to be expanded through more land. It was expected that they would be transformed from labour reservoirs to regular small holdings with viable businesses; and homes from whence people could comfortably travel to their fields.

Regrettably, the situation has either not changed or has deteriorated. The present author’s scholarship was built on depressing findings of landless and near landless people surviving mainly from migrant remittances and old age pensions (Letsoalo, 1982). Presently, the government’s pride is providing social grants to more than 17 million people, all one third of the population.

Commentators who oppose remedies for the unequal redistribution peddle the fallacy that black South African have been functionally urbanised. The fact is that studies of apartheid bantustan urbanisation have long been characterised as displaced urbanisation. The population in these settlements was no different from those in the villages (Letsoalo 1982).

The anti land reform lobby also argues that blacks will not want land because they have been agriculturally deskilled. As the present writer indicated: “Alienation from agriculture is the result of land dispossession and it is now used in econometric proposals against land reform; proposals that are silent on the fact that these people do not have skills for urban jobs; and that the South African economy does not have the capacity to absorb the prematurely displaced labour (Letsoalo, 1994). As Vilakazi (2012) indicated, a large bulk of the African rural population has migrated together with their poverty and misery to urban areas, forming shanty towns attached to the original townships.

No rocket science was necessary to predict that homes established through several decades were not going to be abandoned simply through gaining the right to vote. For the record, houses of all shapes in the former bantustans are much more comfortable than the dangerous squatter settlements around the metropolis. This, with no bonds from banks. Very few African professionals, from advocates, doctors, professors to judges etc., do not have a second home on communal land in these areas. Not to speak of all the workers who continue to be migrants, even now when they qualify for houses wherever they work. They still retire to or get buried in these areas.

It is a fact that chiefs became the tools in the apartheid scheme of denationalising Africans. Yes, some of them participated eagerly, but some such as Kgoši Malebogo resisted until as late as the late 1970s. Chiefs were as much victims as they were perceived to be beneficiaries of the system. The key people in that scheme became Nobel Peace celebrities. They became cabinet ministers, senior civil servants and judges with generous pensions – all in the name of reconciliation.

Chiefs and by extension people living on communal land, on the contrary, have become a ball to be thrown between the politicians and opinionistas. The government is perceived to support the institution by funding their accommodation in Houses of Traditional Leaders; and generous salaries extended even to indunas or headmen. Through the Ministry of Culture and Heritage, music and even fashion, so-called African tradition is celebrated. However, in terms of economic policies and basic services, the government is driven by political correctness à la opinionistas.

Thus, attempts at legislation to deal with communal land ownership and administration are frustrated by reference to the constitution, which is clearly not in sync with African beliefs. Why so much time and money is used in these attempts is beyond comprehension. The 1998 Communal Property Association Act (CPA) is the tool used to administer tribal communal land when restored under the 1994 Restitution of Land Rights Act and the land bought with assistance from government grants and loans under the Redistribution Programme. The term communal in the Act is a deliberate terminological confusion. The land is restored under freehold title. Some of the land has already been lost through bank foreclosures. Former members of tribes, accustomed to farming as individual families were forced to farm together, with disastrous results. Ironically, the failures are now blamed on chiefs.

For example, the revered Archbishop Makgoba’s book laments the fact that his ancestor Kgoši Makgoba’s rich Magoebaskloof (sic) valley continues to enrich whites, whilst members of his tribe are banished to barren land and poverty (Makgoba, 2017). However, commentators such as Jacky May (City Press 10 June 2018) abuse his book and name to advance the narrative that chieftaincy is to blame for the conflict amongst the beneficiaries. He or she deviously calls the government preferred legal entity a “royal trust”. This, despite the book referring to a “community trust”. This is not just semantics. It is criminal in the context of so much anger caused by land dispossession and the rewriting of history.

Then there is the celebrated former President Motlanthe becoming the bearer of “bad news” that the High Level Panel he chaired has recommended the abolishment of the Ingonyama Trust, established in terms of the apartheid government manoeuvres on the eve of democratic elections in 1994. His panel neither considers the involvement of the de Klerk’s administration nor Minister Hanekom’s Department of Land Affairs in the promulgation and implementation of the Act, respectively.

Lest it be forgotten, the first democratic administration loyally implemented the Ingonyama Trust Act at great cost, whilst scrapping the Lebowa Land Titles Trust in the now Limpopo province. The latter was spearheaded by advocate Piet Steytler, who assisted tribes in the then Lebowa bantustan to claim title from the state. It would be good for advocate Geoff Bundler SC to comment on the recent celebration by the Restitution Commission on confirming tribal title in the Sekhukhune area – “Minister gives Roka Lebea tribe title deed” (Capricorn Voice 30 May-5 June 2018). That the claim was reportedly lodged on 23 November 1998 is a whole long story, and many an official was bruised before the Restitution Act was amended by Minister Didiza in the second administration. Unfortunately, this recognition of tribal land ownership is deceptive and marred by the establishment of a CPA to hold tribal land title.

Let it not be suggested that both Trusts are the best thing to happen to communal land in South Africa. The fact is that they were not the brainchildren of a democratic government. The past five administrations have failed to provide for the victims of apartheid in this regard.  The 1996 Interim Protection of Informal Land Rights Act (IPILRA) has become the tool to alienate tribal communal land (Letsoalo and Thupana, 2015). What makes communal land rights “informal”? These people are owners. The courts have become inundated with cases emanating from this legislation. Corruption is legalised through this legislation. If it is not the members of the government created structures to administer the funds accused, it is the competition between them and the traditional councils for the spoils. The losers are the landless majority, some of whom have to be relocated; whilst the real beneficiaries are the mining companies, developers and co-opted Black Economic Empowerment (BEE) partners. Moreover, there is no market value for communal land.

The injustice was also reflected in the exclusion from the government housing for the poor, commonly referred to as Reconstruction and Development Programme (RDP) houses. Originally they were not provided on land under communal tenure. Instead bantustan-type townships were established on tribal communal land to facilitate provision of RDP houses. This has since changed, but the discrimination was registered at great cost.

Following the artificial amalgamation of certain towns with villages under communal tenure in local government municipalities, some local municipalities originally refused to provide services in the villages on the ground that they are on state land. Again, lots of money was spent on attempts to resolve the impasse. The animosity has definitely not been dealt with. Services provided remain as unequal as pre-1994. Black people continue to live in areas formerly designated bantustans whilst whites continue to live in areas formerly reserved for whites, together with a few blacks who can afford to pay for land.

Most controversially, the Ministry of Land Affairs and implementers of land reform disagreed on the increase of communal land through the Redistribution Programme. This denial was portrayed in political correctness  speak, not to consolidate bantustans; increasing traditional communal land equals giving power to traditional leaders whose institution is corrupt and oppress women; and chieftaincy is bound to die a natural death and is already only supported in KwaZulu-Natal.

The major problem progressive scholars have with bantustans was/is the limited areal space compared with white areal space. If the ratio were to be 10:1 in favour of “bantustans”, Africans would have cause to celebrate. Africans who were victims of bantustans cannot justifiably be denied land under the pretext of being politically correct and not enlarging bantustans; etcetera (Letsoalo 22/10/96).

Unfortunately, the latest 2017 resolution of the African National Congress (ANC) party to “democratise” communal land and to “provide security of tenure” is nothing more than a veil to legitimise CPAs and conversion of communal tenure to freehold tenure. To add insult to injury, a Parliamentary Committee to deal with “Expropriation of Land Without Compensation” is also asking the “people” about the form of tenure. Hopefully someone out there understand what all these mean. This, has provided conservative political parties the opportunity to conflate the redress of land dispossession and unequal land redistribution with the so-called security of tenure.

Communal land tenure security

African people lived on communal land before settler invasion and dispossession. There was no controversy about ownership of land. Traditional or customary law always recognised ownership of land by different tribes or clans. The tribe’s history of occupation and control over its territory determined its land ownership and other land rights. In fact most tribes are still identified by means of the land they occupy, for example ga-Sekhukhune or ga-Modjadji. The land was clearly defined, marked by geographical and other natural features such as mountain ranges, peaks, hill ridges, rock outcrops, cliffs, gorges, valleys, plateaus, rivers, streams, dongas and even giant trees.

The fact that communal land was not surveyed and registered did and does not make it anything less than ownership by a particular tribe. The same goes for all parcels allocated to individual families or households for residential and cultivation purposes. The tribe was the owner and was thus recognised by other tribes. Members of another tribe could enter the land of another tribe if they clearly demonstrated their recognition of the sovereignty of the resident tribe.

This understanding of the concept of tribal land ownership is still valid and observed, in spite of the onslaught unleashed on both communal land and chieftaincy through centuries of white domination. Not even the fact that tribal land is registered as state land can change this. As recent as the late 1970s to the early 1990s the writer’s research findings in the present Mpumalanga and Limpopo provinces showed both the traditional and adaptations of the practice of the communal land tenure system (Letsoalo, 1987, 1991, 1994).

Significantly, there are similarities in the characteristics of communal tenure systems that extend beyond the Bapedi population sector to beyond the northern, southern and western sectors in South Africa; to Botswana and Lesotho; and interestingly, even to the Australian aboriginal population ( Gilbert, 1994). A great revelation of the study is the myths that have resulted from the codification of the traditional characteristics of communal tenure.

There are two primary forms of tenure, communal and freehold. The basic difference between the two is that the former is inalienable, free through membership as described above; and the latter is alienable, can be bought and sold. The present writer has gone as far as suggesting that the former has/had values more conducive to development than the standard features of the latter (Letsoalo, 1991).

For example, under freehold tenure a few individuals may own all available resources to the exclusion of the majority and without using them productively. Under communal tenure everybody who needs land has access to the common land. Under communal tenure arrangements can be made to transfer the right of use from one family to another, a system that redistributes surplus land to those without. Freehold tenure, by contrast, perpetuates a class of have-nots with its exclusive private use and speculation.

Because landowners under freehold tenure have excess land, they have tenants who use the land on the owner’s terms, which are inevitably exploitative. The tenants’ only option is landlessness, which is what happens when landowners decide not to have tenants. Under communal tenure, the landowners/users control both their production and consumption without being dictated to. Not even the chief has control over the individual holdings once they have been allocated.

The following response to professor Ben Turok clearly emphasises the virtues of communal tenure: “Every individual has the right to a piece of land. There aren’t people who squat in a tribal area, because every family has a right to a piece of land for residential purposes and for farming....Banks don’t recognise that kind of ownership because they know that they can’t lay their hands on that piece of land if you default on your payments. The banks say that system does not provide security of tenure to the person allocated that piece of land because it cannot be taken away under any circumstances....You can’t sell it and that is the strength of it. You will continue, even if you are poor, to have a place in which to live, to eke out some kind of living....Now and again you hear of people ejected from RDP houses and other houses because they cannot pay their debts to furniture shops, or municipal rates, or to the banks. So they end up squatting in the street. Is that better?” (Holomisa, 2005 pp.14-15)

The following are some of the myths that need debunking; and have indeed long been debunked (Letsoalo, 1987, 1991). Firstly, that there is a difference between the chief, tribe and members of a tribe leading to alleged controversy as to the owner of the land. The chief is actually part and head of the tribe. There is no vernacular for so-called trustee, custodian or even nominal owner. These are concepts that deceptively refer to the appropriation of tribal land by successive governments, colonial and democratic alike.

Secondly, that ownership is synonymous with freehold title and therefore communal tenure is not ownership and does not provide tenure security, which can be used as collateral for credit. Tribal communal land is inheritable from generation to generation; and membership to a tribe is lost in very exceptional cases. The most well-known category of apartheid forced removals is that of Black Spots, areas under freehold tenure. Where was security of tenure? A title need not be the only requirement for credit. Indeed, many Africans would still not be credit-worthy even if they were title-holders. To use John Bruce’s (1989) phrase, nothing can replace the “security of access to economic resources” embodied in communal tenure. And, to quote one of the best writers on land rights: “The inheritance of land was totally secure, never-ending state of possession that extended generation after generation to all those born within the spiritual boundaries of their tribal area” (Gilbert, 1994 p.3).

Thirdly, that the land is used communally. In reality individual families own their arable fields and residential sites. Grazing and other resources are used communally according to necessity.

Last but not least, that women are discriminated from land ownership. When land was allocated to a family, no individual could be discriminated against. Women-headed households are being allocated land. Individualisation has actually been reported to have marginalised women (Coldham 1982, Migot-Adhola, 1991).

As I indicated elsewhere: “...no purpose can be served by romanticising the indigenous land tenure system. There were certainly features of this system which would have changed to meet new realities, and indeed the system has gone a long way to accommodating new circumstances – even those inflicted for the purpose of oppressing Africans. For example, private individuals have access to business sites; land cannot be left fallow for more than a specified number of years; private property such as buildings may be sold. The system is in transition.” (Letsoalo, 1991 p.108). Corruption is not a monopoly of chiefs. How many elected leaders have been found to be corrupt?  Laws, institutions and socialisation are obviously a remedy. Likewise, with gender discrimination.

Changing policies to undermine communal tenure

The initial official rationale for pushing Africans into the reserves and bantustans, land dispossession and denial of freehold titles, was to preserve their tradition. However, two significant aspects of African tradition were interfered with, namely, the African land management system and the economic and status of women.

By the 1950’s the reserves could no longer serve the purpose of subsidising the capitalist economy. They had been seriously impoverished, deliberately. The government acknowledged that the reserves were generally congested, overstocked and eroded. The blame was ascribed to African traditions, especially the land tenure system. However, when the 1956 Tomlinson Commission Report recommended freehold ownership as a remedy, the government rejected the proposal. Anything that would make Africans equal with whites was intolerable. Officially it was claimed that freehold would undermine African culture, the very culture that had already been undermined. Betterment planning was then introduced to divide blacks between farmers and non-farmers removed to artificial towns, appropriately named kapteinsdorpe or closer settlements.

The 1980s have been characterised as the decade of reform and co-optation of a class of blacks hopeful of material advancement; and a buffer between the white minority landowners and the black majority landless. The policy changed from denial to the coercion of blacks to accept freehold. This was part and parcel of a general strategy. The de Lange Report advocated privatisation of education in 1981; Simon Brand advocated privatisation of other sectors in 1982; and The White Paper on Privatisation was published in 1987. Afrikaans-speaking universities proposed modernisation of communal land rights. The KwaZulu Land Bill mentioned that traditional leaders must first agree to the conversion of a holding into freehold.

By 1990 it was clear that the bantustan policy had failed. The policy moved to a pre-emption of land reform by an eminent majority government. The notorious Land Acts were replaced through the devious 1991 Abolition of Land Measures Act, which was an extension of the privatisation strategy. In terms of the new strategy all sectors that were nationalised under the white government were to be privatised before the majority government took over. Most significantly, a market-based land reform was endorsed. The 1991 Upgrading of Land Rights Act (ULTRA) made provision for the transfer of land from the state to tribal authorities and to upgrade (from inferior) communal tenure to freehold tenure (superior).

Post 1994, it is difficult to assign any land reform policy to the ruling ANC party. Firstly, because the democratic government has continued with every policy and legislation of the Nationalist Party 1991 White Paper on Land Reform (Letsoalo and Thupana 2013). Lastly, because the principles of equality, affirmative action and reconciliation in the Property Clause are all subject to different interpretations.

Thus, on the eve of the 25th anniversary of democracy, no legislation has been passed to effect “tenure security” as prescribed by the constitution. The Communal Land Rights Act (CLARA) was passed in 2004 after several bills. Opponents of CLARA succeeded in the Constitutional Court to overturn the legislation. The aborted Act provided for “the registration and titling of new order rights; and the democratic administration of communal land”. This is the government vocabulary for freehold and choice between Traditional Councils and elected CPAs. The introduction of “choice” in itself is problematic, but supposedly in line with democratic political correctness.

The 2017 Communal Land Tenure Bill has many features that were contained in the previous Bills culminating in CLARA. Considering the fact that opponents of CLARA were involved in the Motlanthe High Level Panel that recommended that IPILRA be made permanent, the government has a long way to finalise “security of tenure and democratisation of communal tenure administration”. Fortunately, communal tenure continues to be thrown a new lease of life. But, as indicated above, IPILRA is no panacea.

All these attempts at dealing with communal tenure will end up with an economic and social costly disaster. The damage caused by apartheid restructuring will not be erased by a piecemeal approach to land reform. All countries in the Southern African Development Community have opted to retain and even increase the area under communal tenure. The furthest they have gone is introduce leasehold. For the record, communal tenure is closer to leasehold, with the advantage of free land. Many issues related to land tenure need to be transformed. For example, the legal framework related to matrimony, inheritance and the credit system. All minds should be on deck to assist the movement for nationalisation of land, in order to facilitate proper utilisation of the land and economic stability. Otherwise, the prospect for peace and stability will be futile.

References

Bruce, J. 1989: The variety of reform: A review of recent experience with Land Reform and the Reform of Tenure, with particular reference to the African Experience, Paper for Conference on Human Rights in a post-apartheid Constitution, Columbia University, New York.

Coldham, S. 1982: Land Reform in Kenya – Some Problems and Perspectives, In Third World Studies, Law in Alternative Strategies of Rural Development, International Third World Legal Association Studies, p.82-103.

Gilbert, K. 1994: Because a White Man will never do it, Angus and Robertson, Adelaide.

Holomisa, S.P. 2005: Old Traditions: New South Africa, In New Agenda 17, p.10-17.

Letsoalo, E.M. 1982: Survival Strategies in Rural Lebowa: A Study in the Geography of Poverty, M.A. Dissertation, WITS University.

1983: Displaced Urbanisation: The Settlement System of of Lebowa, Development Studies Southern Africa, 5(3) p.371-387.

1987: Land Reform in South Africa: A Black Perspective, Skotaville Publishers, Johannesburg.

1991: Land Reforms -State Initiatives, In A Harvest of Discontent: Land Questions in South Africa, edited by M. De Klerk, IDASA, Cape Town, p.99-111.

1994: Restoration of Land: Problems and Prospects, In South Africa: The Challenge of Change, edited by  V. Maphai, SAPES, Harare, p.202-220.

1996: Letter to The Law Commission, Pretoria.

Letsoalo, E.M. and Thupana, M.J.J. 2013: The Repeal of the Land Acts: The Challenge of Land Reform in South Africa, Social Dynamics: A Journal of African Studies, 39(2) p.298-307.

2015: Alienation of Communal Land in  South Africa: A New Form of Dispossession? Occasional Paper (77), Centre for Advanced Studies of African Society (CASAS, Cape Town.

Makgoba, T. 2017: Faith and Courage: Praying with Mandela, Tafelberg, Cape Town.

Migot-Adhola, S. et.al 1991: Land Right Systems in Sub-Saharan Africa: A Constraint on Productivity? The World Bank Economic Review, 5(1) p.155-175.

Vilakazi, H. 2012: How to Solve the Economic-Social Crisis in South Africa, www.professorvilakazi.wordpress.com, September 9-12.

*Essy Letsoalo is the author of Land Reform in South Africa: A Black Perspective and several papers on land and tenure reform.