Property & Wealth

Radical change in property rights needed for RET

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An antiquated approach to recording land rights in South Africa is keeping a door to a goldmine for radical economic transformation (RET) tightly locked.

There can be little doubt that security of tenure on the piece of land where they live, for the sake of shelter and as collection point of earthly belongings, an instrument for accumulating wealth, and as financial security for acquiring capital, is the first step in economic advancement for most people.

At a recent discussion on tenure security and land reform Lauren Royston, Director of Research and Advocacy at the Socio-Economic Rights Institute (SERI), said: “Currently, if you are poor there is only one way to tenure security and that is through the housing subsidy programme.”

She, however also highlighted the fact that the programme is plagued with problems such as maladministration and corruption. Even for those who are lucky enough to access the programme, they have an only 50% chance of having their title deed registered.

Because of the huge backlog in registering title deeds, some properties haven’t even made it onto the deeds registry when owners want to sell.

To this situation can be added the fact that close to a third of the country’s population, some 15 million people, live in so-called traditional areas, where the title on land is held by traditional tribal authorities. For those who reside, and often toil as small-scale farmers, on such land, it is not available as a financial security instrument.

The most prominent example of this situation, that came in the lime light in recent times, is the private residence developed for President Jacob Zuma at Nkandla, located on tribal land in KwaZulu-Natal (KZN).

Not just a rural problem

That the problem of securing title over land where people reside and, in the words of Thomas Walters (Democratic Alliance shadow minister of Rural Development and Land Reform) has caught many a “cycle of inherited poverty,” was illustrated by a Constitutional Court (CC) case as far back as October 2000.

The case “The Government of the RSA, the Premier of the Western Cape, the Metropole of Cape Town and the Oostenburg Municipality vs  Mrs Irene Grootboom,” highlighted the plight of hundreds of thousands of people living in deplorable conditions throughout the country, and the duty of the state to foster conditions to enable citizens to gain access to land on an equitable basis.

In the latter regard, the existing systems of recording property rights have become a massive obstacle to true economic transformation.

According to Ben Cousins, the founder of the Institute for Poverty, Land, and Agrarian Reform (PLAAS), 60% of people in the country occupy dwellings outside of the formal property system.

Cousins, Royston, Donna Hornby and Rosalie Kingwill, recently published a book on the subject, titled, “Untitled: Securing Land Tenure in Urban and Rural South Africa.

Besides the situation in traditional tribal/rural areas, authorities have also been unable to keep-up with the demands on available land for occupation by rapid urbanisation – a factor that heavily impacted on the 2000 CC case.

It highlighted, for one, the need to distinguish between the concepts of a “home” and “shelter,” and how it impacts on governments constitutional duty to deliver in terms of peoples right, under sections 26 and 28, regarding adequate housing, and providing rudimentary shelter.

Negative impact

Not only does this situation lie at the root of the daily occurrence of communities resorting to violent rebellious protests against their living conditions, but it also dangerously skews, and inflames, the debate about land distribution. Statistics used only reflects officially recorded fixed property. 

The uncertainty that prevail for millions in terms of their rights over the patch of land where they reside, not only inhibit their investment of income and “sweat capital” to develop it, but it also robs them from the entrance to the formal economy via raising capital.

Radical change to the system of recording property rights is needed for it to become the driver of radical economic transformation.

Royston said, “we need law in this country that protects informal land rights holders, across the rural and urban divide.”

However, she also cautioned that instead of “sinking millions of rands into title deeds rectification programmes”, cheaper, quicker alternatives are available, like recording local rights as it exists on the ground. This would mean the development of local land records, which could recognise social and “off-register” tenure.


If government, with the private sector’s collaboration, make a mind shift to some ‘outside the box’ thinking besides the present title deed register, accesses to a proverbial gold mine for radically change in the economic prospects of the poorest of the poor could be opened.

It could also bring a massive injection via new investment and enterprises for the economy to drive not only ‘on the book’ economic growth, but also job opportunities via related industries and services.

by Eve van Basten

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