Property & Wealty

Land redistribution’s big unknowns need further interrogation

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Uncertainties and impediments surrounding the status of large areas of traditional communal land remain a challenge to South Africa’s land restitution process. (Read more)

The prevailing situation regarding traditional land is still in most instances preventing many communities and thousands of individuals from gaining access to the benefits, especially economic, of direct legal and full ownership of fixed property.

Much of the process of fully modernising and regularising the situation is likely to play out in the courts for some years to come.

An important recent judgement in the Constitutional Court illustrates this process and might give some direction for future litigations. In a dispute between the Bakgatla-Ba-Kgafela Communal Property Association of the Northwest Province and traditional leader Kgosi Pilane and the Traditional Authority, the Court ruled in favour of the Association, representing the majority of the community, to take possession of the land in question.

The Court effectively clarified the proper interpretation of section 5(4) of the Communal Property Association Act (the Act).

Scope of the issue

Assessing the size and status of ‘Black’ communal areas is an important step in overcoming the bias and misunderstanding that often clouds the public debate, and a way to the adoption of well-informed policy positions regarding land restitution.

According to the 2014/15 Commission on the Restitution of Land Rights’ annual report some 428 claims were settled thus far. Of these 241 were urban, and 187 rural.

There have been 78 600 beneficiaries from 15 457 households. Awards of 144 406 hectares were made at a cost of around R1 billion, with financial compensation totaling around R1 billion. It adds up to R2 billion spent on the land restitution process to date.

However, many communities and especially individuals, in the absence of the ability to register individual titles over the land on which they reside, remain excluded from the full potential benefits of the process.

As mentioned in the previous column, the PLAAS (Institute of Poverty, Land and Agrarian Studies) research identified 15% of South Africa’s land mass as being ’Black’. That translates into approximately 18 300 000 hectares of land that are historically designated as traditional land.

More specifically PLAAS attributes the ‘black’ land as being:

  • 1% former ‘coloured’ reserves;
  • 2% being held by the Ingonyama Trust (in former KwaZulu);
  • 2% other customary lands held in trust by the state; and
  • 10% being the ex ‘homelands’, other than KwaZulu.

These communal areas vary considerably across the provinces, from over 36% in KwaZulu-Natal to under 0,05% in the Northern and Western Cape.

The former homelands represent communal areas that cover over 17 million hectares of which around 14.5 million hectares were classified as agricultural land, with the balance being towns and protected areas.

This land is mostly state-owned and heavily settled by black households under various forms of customary tenure, with tenure reform a highly contested yet neglected cornerstone of government policy.

The PLAAS report goes on to identify the main slice of 67% of the land as being ‘white’ commercial agricultural land, 10% being ‘other’ state land and only 8% being classified as ‘the remainder’, which includes the urban areas where most of the ‘property market’ operates.

And the latter is an important perspective to keep in mind: the lucrative and vibrant privately held residential property market we read about in the daily media is essentially found in this 8% one can classify as ‘the remainder’. It is mainly here that the R6 TRILLION property market plays out as an asset class for underpinning the wealth of the county’s citizens.

And it is here where the benefits of private home ownership are seen to bear the fruit and which, in our constitutional democracy, must be open to all the people of the country.

It is high time that ways are found to make it possible for those citizens living and toiling on communal land to share in the benefits and opportunities of this market. The question is: Should it just be left to a cumbersome legal process, which could stretch over many years into the future?

by Eve van Basten

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