Rights to Land is an empirically grounded guide for policymakers and lawyers on South Africa's land tenure reform and land restitution programmes. The land tenure reform is a legislative plan aimed at promoting economic development by formalizing land rights and standardizing local land customs and practices. The restitution programme was conceived as a means to remedy historical injustices by giving land back to those who were dispossessed after the Native Land Act of 1913 and before 1993. Beinart, Delius and Hay analyse the implementation and outcomes of these programmes, offering a splendid account of the unfulfilled promises, unintended consequences and conflicts surrounding South Africa's post-apartheid land policy.
The book is divided into two parts. The first part depicts the varieties of local land customs and practices, the laws and regulations intended to upgrade local land tenure arrangements, and judicial decisions concerning those laws. In parts of South Africa, as in many other African countries, land rights are local, overlapping, flexible and unrecorded. Seeing these variations as obstacles, policymakers often try to standardize them by implementing land titling and other formalization schemes. In South Africa, the ANC government began enacting laws and regulations towards this end after the end of apartheid. But the laws have been far less effective than expected, mainly because of conflicting visions and interests concerning the reform and its implementation on the part of officials and non-governmental actors. In addition, the agencies tasked with implementing the reforms lack adequate funds and technical support, while ordinary people lack the money, literacy and other resources they need to access the services of the courts and other government agencies. Furthermore, according to the authors, the land rights of many South Africans, especially those dwelling in rural areas and urban slums, are threatened by the steadily increasing power of chiefs, who assert private control over land and extract value, often by colluding with mining companies and developers.
The second part of the book focuses on the restitution programme. Rights to Land argues that this programme has exceeded the time and scope initially set for it and morphed into a means for government officials to co-opt traditional authorities and other intermediaries, such as the CPAs (common property associations). These groups in turn are using the programme to entrench their power and property at the expense of the rights of vulnerable families and individuals. To remedy the problems with the existing laws and practices, the authors recommend legal and administrative adjustments that revolve around the universal titling of family and individual land rights and increasing the financial and technical resources available to agencies involved in implementing the programmes.
The notion that a universal scheme of land titling alleviates poverty and spurs economic growth has been around for a long time. As Hornby et al. argue in their recent book Untitled: securing land tenure in urban and rural South Africa (KwaZulu-Natal Press, 2017), however, the ideological premise of universal titling is questionable and its ability to achieve its stated objectives is dubious, especially for poor and vulnerable social groups. Untitled shows that the implementation of land titling programmes in a plural legal setting is far more complex than its enthusiasts recognize, and that it generally serves the interests of the middle class, professionals and elites, leading to perverse outcomes.
The main contribution of Rights to Land lies not in its policy recommendations but in its empirically supported critique of what the authors call ‘a nostalgic return to traditionalist and non-democratic sources of authority’ (p. xiii). This phenomenon, which is by no means unique to South Africa, raises intellectual and practical questions about the proper role of traditional authorities in land administration. Across Africa, a pro-poor progressive vision of land laws and policies has encouraged a shift away from a single-path approach to modernization towards considerable receptivity to local traditions and practices. According to Rights to Land, however, these laws and policies have paradoxically empowered the authority of those who bend the law towards a conservative politics and regressive economic redistribution in South Africa. This very important point also applies to currents in many other settings.
Readers need to be aware that the labels ‘conservative’ and ‘progressive’ in relation to land rights often mask nuances specific to particular histories and political stakes. Addressing the staggering racial inequality generated by apartheid policies in South Africa requires recognizing the collective dimension of the problem and finding effective ways to address it. The constitutional protection of property rights and the role of money in South African politics make this a daunting task.
