COMMUNAL LAND RIGHTS BILL [B67-2003]

10 November 2003
INTRODUCTION

"beneficial occupation" means the occupation of land by a person for a continuous period of not less than five years prior to 31 December 1997 as if that person was the OWNER, without force, openly and without the permission of the owner, and .The word ‘owner’ was problematic, because women do not occupy as if they are "owner", and this could possibly exclude women.

• The term members should be clearly defined to include women, and that women and men are given equal legal status in this Act.
• " in accordance with the constitutional principle of equality" should be added to this definition, to ensure compliance with the Constitutional principles of equality.

• The word persons should include women, and be fleshed out to avoid the exclusion of women.

• The Commission on Gender Equality does not support the composition and powers given to the Traditional Council, in the administration of land.

4. Security of tenure

5. Registration of communal land and new order rights

• and in accordance with the constitutional principle of equality" should be added to this definition.

9. Conversion of registered new order right into freehold ownership

• Reasons should be given automatically, when an application is rejected. The Promotion of Access to Information Act, and the Administrative Justice Act, only provide reasons on request by the Applicant. Most of the applicants that would be affected by this provision, are not empowered to effectively make use of the Promotion of Access to Information Act, and the Administrative Justice Act.

• " in accordance with the constitutional principle of equality" should be added to this definition, to ensure compliance with the Constitutional principles of equality.

• S25(6) of the Constitution, provides for a right, or entitlement ‘…Legally insecure tenure, entitled to legally secure tenure, or comparable redress…’ This right is dependent on the discretionary exercise of the Minister’
• The Constitution provides that this right should be given effect to by an Act of Parliament, such as this Bill, and should therefore not be determined by the Minister’s discretion.
• Clause 4 and Clause 12 fails to give effect to the Constitutional entitlement.
• This Constitutionally guaranteed right is dependent on the Minister’s discretion.
• This Bill fails to describe the nature of the right, the extent of the right, who holds the right, the manner in which it can be exercised, criteria for determination, and individual to determine if they fall within this category, who hold this right. (See Section 2 of the Restitution of Land Rights Act 22 of 1994, which clearly sets out entitlement).

14. Land rights enquiry

• Equity should be replaced with: ’equality’
• " in accordance with the constitutional principle of equality" should be added to this definition, to ensure compliance with the Constitutional principles of equality.
• This Clause provides measures to promote gender equity in the allocation, exercise, and registration of new order rights.

There is no definition of "new order rights" and it is unclear what is in fact being conferred on women.

16. Notice of land rights enquiry

• The Commission on Gender Equality, recommends that an Independent Commission be formed, to attend to the issues which this Bill confers on the Minister. This independent Commission should be given a timeframe within which to undertake all functions relating to legally secure land allocation and distribution.

18. Determination by Minister

• The Minister must ensure that substantive equality is achieved in the result.

• may should be replaced with must.
• Sub clause 4 should include a criteria, because when the Minister refuses, there will be no basis for challenging the decision, because it is difficult to challenge a decision based on discretion.

• This sub clause does not provide any security, and could be a barrier for women.
• This sub clause (b) and (c) should therefore be deleted.

21. Establishment of land administration committee

• Clause 43 authorises the Minister and the Director-General to delegate any power, except the power to expropriate land, a portion of land, or a right to land, which has been conferred upon them in terms of this Act.
• The Commission on Gender Equality recommends the establishment of the independent Commission, to administer land administration, rather than to allocate the powers to the Traditional Councils.
• The extensive discretionary powers this Act delegates to the Minister, should be dealt with by the proposed independent Commission.
• This will assist in making land administration more accessible to the people who fall under the provisions of this Act.

22. Composition

• The whole committee should represent the interests of the vulnerable community, and not only one member. The interests of the vulnerable community should be a primary concern, central to the committee.
• Child-headed households should also be included in the category of vulnerable community members.

26. Composition

• "and must represent the interest of women" should be added at the end of this phrase, to ensure that the interest of women are protected.

• This Chapter should be deleted in it’s entirety. The specific reference to the KZN Ingonyama Trust Land, could created the impression, that they should be treated differently, or it could create a hierarchy of preferential treatment. All communal land should be dealt with in the same manner, to avoid perpetuating the status quo.

36. Provision of assistance to community

• "may" should be replaced with "must". Government departments play a crucial role to ensure that the provisions of legislation is realised.

43. Delegation of Powers

• Failure to give guidance to decision makers (officials delegated by the Minister) to ensure uniformity, and consistency with the Constitution, when exercising their discretionary powers.
• The factors which the Minister, or delegate has to take into account, is wide and open-ended.
• There is an absence of grounds on which these delegated officials can refuse or grant the relief sought. (The Applicant will not know which factors are relevant to their application. In the absence of clearly listed constraints, with regard to the broad discretionary powers, the Applicant will not know on which grounds they are entitled to relief, and on which grounds they can be refused.

The only right ‘derived from or recognised by the law’ which a woman can hold with regard to legally secure land tenure, is a derivative or secondary and temporary right. The legal rights created by the law are therefore highly gendered, and discriminate against women.

On promulgation of legislation in respect of communal land, government must rise to the challenge, to ensure that democracy does prevail, when giving effect to Section 25 of the Constitution of South Africa. The Constitution and our international obligations demand that women and men are treated equitably in all spheres, but particularly in respect of succession and, access to land. To ensure this, we strongly urge Parliament to delay this Bill until after the elections. This will enable government to engage in meaningful consultations with women, and research what women want in terms of land reform and security of tenure and also, ascertain whether women who live under traditional leadership structures, want to be governed by such structures.

OPINION

(B 67-2003)

1. I have been asked by the Commission for Gender Equality to advise on whether the Communal Land Rights Bill addresses the issue of gender equality in the manner required by the Constitution.
2. The Bill is clearly intended to give effect to the requirements of sections 25(6) and 25(9) of the Constitution, which respectively provide as follows:

‘A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.’

and

‘Parliament must enact the legislation referred to in subsection (6).’

3. The starting-point in the Bill is clause 4, which provides as follows:

‘An old order right which is legally insecure as a result of past racially discriminatory laws or practices as contemplated in section 25(6) of the Constitution must be legally secured in terms of this Act.’

4. The Bill creates a mechanism for the Minister to institute a land rights enquiry (clause 14), and on receiving the report of the enquirer to determine the location and extent of the land to be transferred to a community or person (clause 18(2)). Clauses 18(3) and (4) give the Minister wide discretionary powers in this regard.
5. In order to understand the impact of this process on gender equality, it is necessary to understand the gendered nature of the ‘old order’ rights which the process is to address.

 

CAN WOMEN HOLD OLD ORDER RIGHTS?

6. An old order right is, subject to certain exceptions which are not relevant here,

‘a tenure or other right in or to communal land which—

(a) is formal or informal;

(b) is registered or unregistered;

(c) derives from or is recognised by law including customary law, practice or usage; and

(d) exists immediately prior to a determination by the Minister in terms of section 18'

7. It will be observed that one of the key requirements for the existence of an older order right is that it is derived from or recognised by law, including customary law.
8. There are two main ways in which rights in communal land are derived from or recognised by law. These are through the applicable regulations or by customary law.

The regulations

9. The regulations which govern land rights in the communal areas are the Black Areas Land Regulations R 188 of 1969, which were made under the Black Administration Act 38 of 1927 and the Development Trust and Land Act 18 of 1936. I refer to these as the Regulations.
10. The main method of establishing rights under the Regulations is through the issuing of a Permission to Occupy (PTO). This is dealt with in Chapter 5 of the Regulations.
11. Regulation 49(1) deals with the issuing of PTOs in respect of arable and residential allotments. PTOs can be issued to people who were in the lawful but unregistered occupation of Trust land at the commencement of the Regulations, and to a person who is ‘the head of a family’.
12. It is well known that the practice has consistently been to regard men as the ‘head’ of the family, and to issue PTOs to them. Regulation 53, which deals with the disposal of the registered holder’s allotment on death, makes it clear that this is the intention of the Regulations. Regulation 53(2) provides that a woman who was married to or a partner in a customary union with the registered holder at the time of his death

‘may ... continue in occupation of such allotment until her death or remarriage or entry into another customary union, during which time the allotment shall remain registered in the name of the deceased’.

13. On the widow’s death or remarriage or entry into a customary union, the land in question reverts to the commonage and becomes available for re-allotment to an heir of the deceased holder, or failing that to another qualified person.

Regulation 53(1) and (3)

14. The statutory law of succession provides that only a male may inherit the land.

Sec 23 of the Black Administration Act 38 of 1927

Regulation 2 of the Regulations for the Administration and Distribution of the Estates of Deceased Blacks promulgated under Government Notice R200 of 6 February 1987

15. It is therefore clear that under the Regulations, the only right ‘derived from or recognised by’ the law which can be held by a woman is a right to continue occupying the land after the death of her husband or customary law partner, and that right continues only until she remarries or enters into another customary union.
16. It follows that under the Regulations, the only right a woman can hold is a derivative and temporary right, once her husband or customary union partner has died. A woman can not have a PTO while her husband or customary union partner is alive, and she can not hold an independent or permanent right.

 

Customary law

17. Under customary law, only men are allocated land. Women can generally access use rights to land only through relationships with men.
18. On divorce, wives lose the right to use the land because the land is held by the husband, and the marital house attaches to the land.
19. On the death of a man who has not made a will, including a married man, the land and the house pass to a male relative on the principle of male primogeniture.

Kerr The Customary Law of Immovable Property and of Succession 124

Madolo v Nomawu (1896) 1 NAC 12

Mthembu v Letsoalo 2000 (3) SA 867 (SCA) at [8]

20. The fact that a woman’s access to land is subservient to her husband’s land rights is also expressed by the fact that men can, and do, make unilateral decisions about how the land should be used during the course of the marriage.
21. I am aware that it can be, and has been, contended that the customary law as expressed in the standard texts and cases represents an ossified and unsatisfactory version of the ‘true’ customary law. However, the fact remains that the customary law has been authoritatively re-stated by the Supreme Court of Appeal as recently as in 2000. That remains the law unless and until the customary law is developed or declared invalid by a higher court.
22. It follows that under the customary law, as under the regulations, the only right ‘derived from or recognised by the law’ which can be held by a woman is a derivative or secondary and temporary right.

 

Conclusion: Can women hold old order rights under the law?

23. I conclude that the only right ‘derived from or recognised by the law’ which a woman can hold is a derivative or secondary and temporary right. The legal rights created by the law are therefore highly gendered, and discriminate against women.

 

SECURING OLD ORDER RIGHTS

24. As I have pointed out, clause 4 of the Bill stipulates that old order rights ‘must be legally secured’ in terms of the Act.
25. The Bill does provide that rights recognised by practice or usage can also qualify as old order rights. However, the primary rights in the land are held by men. The rights held by women through practice or usage are generally secondary or derivative. The effect of the injunction that old order rights are to be secured is to therefore reinforce a system in which there is fundamental structural discrimination against women.
26. This is plainly inconsistent with the equality requirements of sec 9 of the Constitution.
27. This result is consistent with the experience in other parts of the world, namely that registration processes generally have the effect of strengthening primary rights and weakening the position of people with secondary rights in the land, particularly women. Paradoxically, those with secondary rights become more vulnerable than they were prior to registration.
28. The Bill attempts to address this through the requirement in clause 14 that the rights enquirer must enquire into (amongst other matters) the measures required to promote gender equality in the allocation and registration of new order rights and the exercise of such rights; the clause 18(1) provision that amongst other factors the Minister must have regard to the need to promote gender equality; and the clause 18(4)(b) provision that the Minister ‘may’ confer a new order right on a woman who is
1. the spouse of a male holder of an older order right, to be held jointly with her spouse, or
2. the widow of the male holder of an old order right, or
3. ‘in her own right’. (The meaning of this last provision is unclear.)
29. There are two difficulties with these provisions.
30. In the first place, they have to be read with the general provision in section 4 that old order rights must be legally secured. As I have pointed out, the effect of this is to reinforce the subordinate position of women.
31. In the second place, this power is discretionary: the Minister ‘may’ confer a new order right on a woman who falls into one of the categories described.
32. In Dawood and another v Minister of Home Affairs and another; Shalabi and another v Minister of Home affairs and another 2000 (3) SA 936 (CC), the Constitutional Court held that where a law gives an official an administrative discretion which may affect the constitutional rights of a person who is affected, the law must instruct the official to exercise the discretion in a manner which achieves the realisation of the right concerned.
33. The Court explained this as follows:

‘There is, however, a difference between requiring a court or tribunal in exercising a discretion to interpret legislation in a manner that is consistent with the Constitution and conferring a broad discretion upon an official, who may be quite untrained in law and constitutional interpretation, and expecting that official, in the absence of direct guidance, to exercise the discretion in a manner consistent with the provisions of the Bill of Rights. Officials are often extremely busy and have to respond quickly and efficiently to many requests or applications. The nature of their work does not permit considered reflection on the scope of constitutional rights or the circumstances in which a limitation of such rights is justifiable.’ [para46]

‘In a constitutional democracy such as ours the responsibility to protect constitutional rights in practice is imposed both on the legislature and on the executive and its officials. The legislature must take care when legislation is drafted to limit the risk of an unconstitutional exercise of the discretionary powers it confers.’ [para 48]

34. In addition

‘It is an important principle of the rule of law that rules be stated in a clear and accessible manner.... Moreover, if broad discretionary powers contain no express constraints, those who are affected by the exercise of the broad discretionary powers will not know what is relevant to the exercise of those powers or in what circumstances they are entitled to seek relief from an adverse decision.... If rights are to be infringed without redress, the very purposes of the Constitution are defeated.’ [para 47]

35. The Constitutional Court therefore concluded that

‘... In the case of the statutory discretion at hand, there is no provision in the text providing guidance as to the circumstances relevant to a refusal to grant or extend a temporary permit.... Nor can we hold in the present case that it is enough to leave it to an official to determine when it will be justifiable to limit the right in the democratic society contemplated by section 36. Such an interpretation, of which there is no suggestion in the Act, would place an improperly onerous burden on officials, which in the constitutional scheme should properly be borne by a competent legislative authority. Its effect is almost inevitably that constitutional rights (as in the case of two of the respondents before this Court) will be unjustifiably limited in some cases. Of even greater concern is the fact that those infringements may often go unchallenged and unremedied....’ [para 50]

and

‘We must not lose sight of the fact that rights enshrined in the Bill of Rights must be protected and may not be unjustifiably infringed. It is for the legislature to ensure that, when necessary, guidance is provided as to when limitation of rights will be justifiable. It is therefore not ordinarily sufficient for the legislature merely to say that discretionary powers that may be exercised in a manner that could limit rights should be read in a manner consistent with the Constitution in the light of the constitutional obligations placed on such officials to respect the Constitution. Such an approach would often not promote the spirit, purport and objects of the Bill of Rights. Guidance will often be required to ensure that the Constitution takes root in the daily practice of governance.’ [para 54]

36. The Bill stipulates a wide range of factors which the Minister (who will usually act through a delegated official - see clause 44) must or may take into account in making a determination.

Clauses 4, 14(2), 18(1), 18(4)

37. These clauses together list approximately 20 different factors which the decision-maker must consider in making a clause 18 determination. No guidance is given as to how they are to be weighted, or under what circumstances (if any) the constitutional right to equality may be limited. The Bill does not ‘limit the risk of an unconstitutional exercise of the discretionary powers it confers’.

THE LAND ADMINISTRATION SYSTEM CREATED BY THE BILL

38. Clause 21(1) of the Bill provides that a land administration committee is to be established in each community.
39. The functions of the land administration committee are set out in clause 24. The committee has wide powers. It must ‘take measures towards ensuring’ the allocation of new order rights and the registration of communal land and of new order rights; and it must establish and maintain registers and records of those rights and transactions affecting those rights - clause 24(3)(a) and (b).
40. The land administration committee exercises the ownership and administrative powers conferred upon it by the community rules - clause 24(1).
41. The land administration committee will therefore be the key local body for administering land rights.
42. Clause 21(2) provides that if the community has a recognised traditional council, the powers and duties of the land administration committee may be exercised and performed by that council.
43. The recognition of traditional councils and their structure are dealt with by the Traditional Leadership and Governance Framework Bill.
44. It is not the purpose of this Opinion to debate the desirability or otherwise of the Traditional Leadership and Governance Framework Bill. I focus only on the impact on women of making the structures created by that Bill into the central bodies for the administration of land rights.
45. While women are now to participate in these councils, the structure created by that Bill has the result that they will be in a permanent minority on the councils. By their nature, the traditional councils are not democratically elected bodies.
46. This may further increase the vulnerability of women: certainly, it can not be said that it promotes equality in relation to land rights.
47. If women are aggrieved by decisions made by the land administration committees which are traditional councils, they will have only very limited remedies. In particular, their land rights will be subject to the decisions of bodies which have an inbuilt male majority, and which are not accountable to them through the democratic process.
48. To this extent, their rights will not be secured or protected and promoted in a manner which ensures gender equality.
49. This defect is underlined by the failure of the Bill to address adequately the question of discrimination in land allocation.
50. Clause 18 plainly contemplates that in at least some situations, the determination made by the Minister or her or his delegate in terms of clause 18 will settle the form which the new order land rights are to take, but will not make the individual allocations. Clause 18(3)(b) and (c) are examples of this. In that case, the individual allocations will be made by the land administration committee, in accordance with community rules. In those cases where the initial allocation is made by the Minister or her or his delegate, subsequent allocations will have to be made by that committee in accordance with the rules.
51. Although the Bill is not altogether clear on the extent of the allocation power to be held by the land administration committees, they will plainly have some allocation functions.
52. The community rules may not be registered unless they are consistent with the Act and the Constitution: clause 19(4)(c). They may therefore not discriminate on the basis of gender.
53. However, it is well known that one of the most pervasive problems faced by women in communal areas is the refusal of some traditional leaders to allocate land to women. Given that the traditional councils will now have this function, there is a very real risk this discrimination may continue either in terms of community rules, or in accordance with unwritten practice.
54. If the rules provide for discrimination, they will plainly be invalid, and can not be registered. The problem is what will happen if the discrimination is not recorded in the new rules, but continues in accordance with past practice.
55. Given the context in which the statutory land allocation system is being created, one could reasonably expect that the Bill would contain an explicit provision banning discrimination in land allocation, or requiring that women be allocated land on the same basis as men. The Bill which was published for comment in August 2002 had such provisions.
56. For example, the objects of the August 2002 version of the Bill included, in clause 2(h) -

‘to provide, in the context of this Act, for the protection of the fundamental human rights contained in the Bill of Rights in the Constitution, including -

(i) the right to equality, especially gender equality in respect of the ownership, allocation, use of, or access to land’

57. This object has not been included in the current version of the Bill.
58. In addition, clause 7(2) of the August 2002 version of the Bill specifically provided that:

1. strengthens and reinforces the results of a discriminatory system which has conferred primary rights on men, and only secondary or derivative rights on women
2. does not protect women against the exercise of wide-ranging discretionary powers in a manner which discriminates against them;
3. does not direct decision-makers to give proper weight to the positive constitutional obligation to promote equality;
4. does not explicitly prohibit practices which discriminate against women; and
5. places key administrative powers in the hands of bodies:
1. on which women are in a permanent minority;
2. which in the past have been primary agents of discrimination in relation to land administration and allocation; and
3. which are not accountable to the people affected in the ordinary democratic manner.

Legal Resources Centre November 2003