11 November 2003 A. Introduction
The Communal Land Rights Bill (CLRB) is a long awaited piece of legislation that is necessary to address the situation of land tenure in the former homeland and reserve areas in South Africa. The Interim Protection of Informal Land Rights Act 31/1996 (IPILRA) was passed as an interim measure to afford protection to those people who tenure rights were legally insecure in these areas. Initially it was anticipated that this interim piece of legislation would exist for a period of one year. However, the Minister for Land Affairs has extended it on a year-by-year basis whilst the CLRB has been in the making.
The CLRB needs to address the legacy of the Apartheid system that set aside 13% of the land in South Africa for the use of the vast majority of South Africans.
The areas of land that will be affected by the CLRB are largely the former homeland/reserve areas. These areas are characterized by overcrowding, a lack of resources and services; and, stark poverty.
Access to, title and use of this land is in many instances is contested. The CLRB needs to address issues of overcrowding in these areas else it will merely legitimize and entrench the unequal system of land tenure and ownership that Apartheid created. The Bill thus provides an enormous challenge to South Africa, as it is an important component of our land legislation that has been drafted to address the constitutional provisions that aims at addressing the land inequalities of this country.
B. The Mandate of the Commission The South African Human Rights Commission (SAHRC) was established in terms of Chapter 9 of the Constitution of the Republic of South Africa Act, 1996 (Act No. 108 of 1996) to strengthen constitutional democracy in South Africa. In terms of section 184 of the Constitution, the SAHRC has the following specific functions:
To promote respect for human rights and a culture of human rights,
To promote the protection, development and attainment of human rights, and
To monitor and assess the observance of human rights in South Africa.
In the performance of its functions the SAHRC is primarily guided by the Bill of Rights as contained in the Constitution, existing rights as developed through our common law and other statutes and international human rights instruments.
The SAHRC has recently adopted two focus areas for its work; namely the alleviation of poverty and the elimination of discrimination. It is within the context of fulfilling its constitutional mandate and within the focus areas that the SAHRC comments on the CLRB.
C. Relevant constitutional provisions The CLRB aims to give effect to section 25(6) of the constitution, which states:
"A person or community whose land is legally insecure as a result of past racially discriminatory laws or practices is entitled to the extent provided by and Act of Parliament either to tenure which is legally secure or to comparable redress." [own emphasis]
D. Economic & Social Rights
The CLRB faces the enormous challenge of ensuring that its provisions will create a conducive environment in which the State can deliver and progressively realize socio-economic rights. In so doing, the Bill must further ensure that it assists in creating a sustainable rural environment in which land is used as an asset in development.
Challenges to the delivery of economic and social rights
The challenges are enormous considering:
Overcrowding in the former homelands
Overlapping of land rights
It is difficult for the State to provide access to many of the socio- economic rights in our constitution (such as the right of access to housing) and services to people on land of which they are not the owners or where there is confusion as to the nature and extent of the ownership rights.
The impact of the CLRB thus extends beyond a land issue and becomes a broader issue of access to socio-economic rights to some of the poorest members of our society. The Bill thus needs to ensure that there is alignment between the legislation and the various powers and functions of government and structures created in the Bill at various levels.
Does the Bill create a conducive environment for the realization of economic and social rights? Clarity on rights in and access to land are necessary to create an enabling environment for the State and private role-players to deliver services and promote development in community owned land. Private landownership acts as a gatekeeper to the delivery of social and economic rights by the State to those who own land or live on land belonging to others. It is therefore important to determine the extent to which the Bill fulfills not only the rights contained in the Constitution relating to land but also those rights that guarantee access to economic and social rights. Access by the State to the land is necessary in order that services may be provided to communities. Therefore, in creating and defining a new land rights regime in communal areas, the legislator must also ensure that this regime will create a conducive environment for the delivery of services and realization of social and economic rights. The SAHRC has a number of concerns about the Bills capacity to contribute towards creating the necessary framework for the delivery of social and economic rights.
Summary - Concerns
No broad human rights objectives are set out in the Bill.
Lack of clarity about the content of the rights being created.
Practicalities of the process that is being created relating to the processes (land rights enquiry); structures (Land Administration Committee & Land Rights Board) that are created in the Bill, and the need for a clear relation between the Bill and the Traditional Leadership Governance Framework Bill (TLGFB).
Lack of provisions relating to service provision.
Insufficient community involvement in decision-making
Insufficiently strong measures to promote gender equality
Concerns over what will occur during the interim period between the promulgation of the legislation and the establishment of "old and new order rights"?
1. No broad human rights objectives are set out in the Bill. There is no reference in the Bills’ Preamble to the constitutional provisions that informed the drafting of the bill. Section 25(6) of the Constitution directs Parliament to pass legislation that will ensure tenure that is secure or comparable redress to persons whose tenure is insecure due to past racially discriminatory laws. It is important that legislation, which flows directly from the Constitution, be recognized as such and distinguished from other legislation. This is important as it informs that interpretation of the legislation itself and the Bill’s interpretation with regard to other legislation. (see for example, PAIA and PEPUDA).
There is also no objectives section that sets out the constitutional ideals that guide the content of the Bill. The objectives section should state clearly that the Bill is aimed at redressing the past effects of racially discriminatory laws. The objectives should also highlight that in addressing access to and ownership of land, issues relating to service delivery of social and economic rights will be facilitated and enhanced. Without these commitments to fundamental human rights norms and standards it is unclear to what extent the Bill supports development and the alleviation of poverty in communal areas. Furthermore, it is unclear to what extent the Bill promotes the progressive realization of economic and social rights.
Submission As argued above, the Preamble should be appropriately amended to reflect the provision of the Constitution that informs the drafting of the Bill.
An Objectives section should be added to the Bill that sets out clearly the objectives of the Bill in fulfilling Section 25(6) of the Constitution and that the Bill will assist in the progressive realization of social and economic rights.
2. Lack of clarity about the contents of the rights being created. The Bill gives a brief definition of a ‘new order right’. The nature, extent, and content of these rights are not defined in the Bill.
"new order rights" means a tenure rights in communal or other land which has been confirmed, conferred or validated by the Minister in terms of section 19;…"
It is unclear whether these new order rights will confer rights of ownership or use of land to individuals or communities. What is the extent of the ownership rights conferred to communities? What will occur on the death of a member of a community? Can the rights be transferred to family members in terms of the laws of succession?
It is precisely the confusion over land rights; who is the holder of the right; and, what the holder’s rights and obligations are, that stand in the way of local government delivering services in some communal area. It is thus important that various categories of rights that can be conferred by the Minister be adequately defined in the Bill.
Submission
There is a need for an adequate definition of "new order rights" in the Bill.
3. Practicality of the process The SAHRC has a number of concerns regarding the processes and structures that are being created in the Bill and whether these are practical. These concerns are raised in the context of the progressive realization of access to social and economic rights and whether the processes and structures will adequately assist in facilitating the delivery of these services.
3.1. Land Rights Enquiry
Many of the details regarding the manner in which these land rights enquires will be conducted are not provided for in the Bill. The Minister may prescribe matters to be enquired into during the enquiry (Section 14(2)(i)); designate or appoint persons to be land rights enquirers (section 15); determine the functions of the land rights enquirer and the manner in which the enquiry must be conducted (section 17); and, determine the necessary powers for the effective conduct of such an enquiry (section 18).
Submissions
Section 14 should state that the land rights enquirer must consider the State’s constitutional obligations regarding access to and progressive realisation of social and economic rights. To this end, the land rights enquirer must be compelled to consult with the necessary organs of government in order to ensure that any land rights determination will promote the delivery of services..
It is proposed that section 45 which deals with Regulations should have an additional clause that states that proposed Regulations should be subject to a public participation process and submitted to Parliament.
3.2. Land Administration Committee (LAC) – Chp7 This committee is to be established by the community. Where a community has a recognized traditional council, the powers and functions of the LAC may be exercised by the traditional council. Section 24 of the Bill grants wide and far-reaching functions and powers to these LAC’s.
The SAHRC is concerned that the Bill does not provide for institutional support and resources being provided by government to the committees. Given the high levels of poverty in many parts of the former homelands it is questionable whether there is the necessary capacity and resources for these powers and functions to be carried out in a satisfactory manner.
Submission
Adequate provisions must be included in the Bill that provide for institutional support and resources being provided to capacitate the LAC’s to carry out their powers and duties effectively.
LAC’s must be sufficiently capacitated, trained and resourced to carry out their functions.
3.2.1. Role of Traditional Authorities Where a community has a recognized traditional council, then it may perform the powers and functions of the LAC (section 21(2)). According to the definitions section a land administration committee are traditional councils where they have been established and recognized. There is thus a contradiction in the Bill regarding the composition of the LAC when section 21(2) and the definition of a LAC are read together.
According to the CLRB, in any other area where a traditional council has not been recognized and established, there should be elections of community representatives, which will surely require administrative and budgetary support, unless councilors are eventually intended to compose the 40%.
A number of concerns and fears have been voiced within civil society concerning traditional councils assuming the role of LAC’s. It is argued that traditional authorities are receiving powers that they did not have in the past. This new system of LAC’s is in effect legitimizing the past by granting ownership and administrative powers to the traditional leaders. The Bill is thus not addressing the wrongs of the past but merely retaining the status quo.
Submissions
The LAC’s must provide in all instances for democratically elected members. Communities must also elect the traditional council where there is one.
Having noted the importance of community rules in determining the total number of members, the Bill could usefully provide for a minimum number of members to ensure the committee’s adequate functioning relative to its powers and duties and the presence of non-voting members.
Section 19(3) of the Bill deserves to be rephrased to emphasise that the ‘community rules can only be binding on the community and its members once the rules have been made accessible through a process of public awareness raising, especially in the area in which the rules apply’. The same principle applies to section 19(5) where standard community rules can be prescribed by regulation.
One issue that needs to be addressed is what constitutes a community and the rights of different members of such a community when it comes to meetings, voting or decision making process, especially in relation to the role and power of traditional leaders. Without this clarity, it is unclear what the role of traditional leadership is with regards to communal land ownership.
3.3. Land Rights Board (LRB) - Chap 8 (Sections 25 – 30)
The Minister may establish one or more LRB through a prescribed nomination and selection process. The Bill does not state how many LRB’s will be established. The LRB has many powers and duties including: advising the Minister, liaising with all spheres of government, monitoring compliance with the Constitution and the Act; and various powers to enquire into matters concerning communal land (see Section 28).
Submissions
There are no provisions in the Bill that provide an opportunity to the community to challenge the findings or work of the LRB.
It may create confusion that any LRB board member has the power to ‘convene and attend meetings of a community or LAC’ (see section 28(2)(d)).
3.4. Comparable Redress
Chapter 4 of the Bill aims to fulfill the constitutional provision set out in section 25(6) of the Constitution, namely that an Act of Parliament must provide for comparable redress as an alternative to secure tenure to those persons or communities dispossessed of property after 19 June 1913 as a result of racially discriminatory laws or practices. Should the Bill fail to do this then the Apartheid created boundaries in communal areas will be entrenched within our new constitutional dispensation. Furthermore, an opportunity to provide for redistribution of land for those people and communities living in communal areas will be lost.
Only the holder of an ‘old order rights’ may apply for comparable redress (section 12). Thus, a land rights enquiry will first have to be completed before an application for comparable redress may be made. This will delay the opportunity to provide persons with comparable redress as the land rights enquiry, as already pointed out, appears to be a lengthy and time-consuming process. There is an urgent need for more land to be made available to people living in communal areas.
By making the determination of ‘old order rights’, a precondition to the application for comparable redress an opportunity to resolve contested land rights is being lost. For example, where there are areas where land rights are contested, the option to make application for comparable redress may alleviate the need for land in the area and thereby resole the dispute between the parties.
The Bill provides little information as to how the application process will work, who would qualify within the category of holders of old order rights, which persons or groups should receive priority, and what factors will be taken into account when determining the amount or nature of comparable redress.
Submissions
Considering the overcrowding in the former homeland areas, it is argued that persons and communities living in these areas should be afforded the opportunity to apply for comparable redress before the holding of a land rights enquiry. This would alleviate the overcrowding situation in these areas. It may also potentially assist in resolving contested claims to access to land in these areas. It would also assist in facilitating access to land for women who have been traditionally excluded.
The Bill should provide further details about the process to be followed to apply for comparable redress, setting out who may apply, the process and the options for redress that will be made available. By failing to provide these details the Bill is not complying with its constitutional obligation to provide comparable redress.
4. Lack of provisions relating to service provision
Service provision – section 37 & Section 18(4) Minister in consultation with provincial Minister and other land-use regulators
S37 Provision of municipal services and development of infrastructure on communal land -
This section states that: "… no law must prohibit a municipality from providing services and development infrastructure and from performing its constitutional functions on communal land however held or owned."
The LAC’s are responsible for initiatives to ensure the delivery of services in the communal areas. This places an enormous burden on the committees should they become responsible for the collection of rates and taxes for the payment of services. It is unclear whether this is a practical solution to the delivery of services.
It is of further concern that there are no procedures available to communities should the LAC fail to provide; cooperate in providing; or, take steps to facilitate the provision of services. The LRB could enquire into such a situation as part of its monitoring functions (Section 28(1)(c)) and advise the Minister. However, it is unclear what steps the Minster could take to rectify such a situation.
Government departments do not generally invest on privately owned land as the assets provided attach to the land and ownership thereof vests with the owner of the land. As it is unclear what the nature and extent of the new order rights shall be it also remains unclear whether a conducive environment shall be created for the delivery of socio economic rights.
Read together, Sections 38 and 18 provide for cumbersome, lengthy and potentially expensive procedures for the State to follow in ensuring that sufficient rights in land are retained in order that services may be provided in communal areas.
Submission
Creative alternatives to individual ownership of land as a prerequisite for the provision of services by the State need to be created within the Bill. Possible solutions, include excising areas for service delivery, this is provide for under the Ministers powers in the Bill (section 18(4). Further options, which are cost effective and more easily implementable must be explored and included in the Bill.
5. Insufficient community involvement in decision making
Section 16 provides that interested parties will be invited to participate in a land rights enquiry. Section 17 provides that the land rights enquirer may convene and attend meetings of interested persons. The nature of the participation by the community is not spelt out in the Bill. There are also no provisions in the Bill for interested parties to challenge the report that is presented to the Minister who is empowered to make a number of determinations regarding the land in questions based on this report. (The Promotion of Administrative Justice Act (PAJA) and the procedures to challenge administrative decisions would however be applicable).
Submissions
More community inclusive provisions in the process need to be developed.
The Bill should contain provisions that allow communities to challenge the content of the land right’s enquirer’s report.
The process needs further consideration and incorporation of community views in the process.
6. Insufficiently strong measures to promote gender equality
The CLRB is faced with the enormous challenge of addressing gender inequalities that exist in relation to land tenure and land rights in these areas. The Constitution provides for non-discrimination based on sex, gender and marital status, amongst other grounds.
The CLRB provides in a number of clauses measures to address gender inequalities. Examples of these include:
Section 5(1) "Communal land and a new order rights are capable of being and must be registered in the name of the community or person including a woman entitled to such land or right in terms of this Act and the relevant community rules;"
Section 14(2)(g) "A land rights enquiry must in respect of an area enquire into the measures required to promote gender equity in the allocation and registration of new order rights and the exercise of such rights;"
Section 19 (1) In making a determination the Minister have regard for "… the need to promote gender equality in respect of land:…"
Section 19(4)(b) The Minister may "…confer a new order rights on a woman- Who is a spouse of a male holder of an old order right, to be held jointly with her spouse;
Who is the widow of a male holder of an old order right, or who otherwise succeeds to such a right, to be held solely by such woman; or
In her own right;…"
In respect of the land administration committee, there are 2 situations
Either
The traditional council s 21(2)
Which has gender representivity ito TLFGB
Or
S23(3) At least one third of the total membership must be women."
Land Rights Board
S27(d)(i) Composition two of the seven members from the affected communities must be women
Clauses that provide representivity on structures are of an affirmative action nature. This is in line with section 9(2) of the Constitution, which specifically provides that:
"To promote the achievement of equality, legislative and either measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."
Challenges to Gender Equality in communal areas Land ownership in terms of customary law and practice is traditionally reserved for men and women are excluded from owning land.
The system provided for in the Bill of conversion and registration of rights may entrench the status quo with the recognition of "old order rights", as the provisions relating to the granting of rights to women are discretionary in the hands of the Minister. The Minister is given a broad discretion; she "may" confer rights in land on women.
The Bill fails to include specific criteria to guide those who allocate or register rights as to when, and on what basis, women’s rights to land must be asserted and protected.
There is no provision in the CLRB stating specifically that women may not be discriminated against in the allocation of land rights.
Submissions The Preamble and Objectives section of the Bill should state specifically that gender equality in access to land must be facilitated through this piece of legislation.
Institutional support, education, and training to empower women to participate in land administration needs to be created within the Bill. This should be set out as a function of the LRB.
Where land is transferred to a household, the land must be registered in the woman’s name as well as the man’s name.
7. Period prior to the determination of rights by the Minister Chapter 5 of the Bill creates a lengthy process, by way of a land rights enquiry, which must be completed before the clarification of existing rights (old order rights), registration of new rights (new order rights) and the determining of comparable redress. The procedure created in the Bill appears lengthy (this is apparent from the number of matters that must be enquired into in terms of Section 14) and one that will take a fair amount of time to complete. The Bill is silent as to what shall occur during the interim period. The SAHRC is concerned that the progressive realization of social and economic rights in former communal areas will be impaired by the lengthy procedures created in this Bill should the State fail to make adequate plans that are implemented in the interim.
Submissions The Committee is called upon to seriously consider the concerns raised in this submission regarding the practical implementation and the possible time frameworks involved as against the States obligations to ensure the progressive realization of social and economic rights. IPILRA should remain in force until the coming into operation of the CLRB.
CONCLUSION The Communal Land Rights Bill provides an important opportunity for us to address the imbalances in land ownership and the lack of service delivery created in the past. The importance of the opportunity from a constitutional rights perspective requires that the issues raised in relation to the Bills impact upon service delivery be seriously considered and that the necessary amendments be made to the Bill.