Ironies of implementation

Henk Smith's chapter in Land, Power & Custom summarizes the context within which the CLRA must operate and the system it introduces.Footnote ¹⁵ He points out the ironies in the discrepancy between the CLRA's aims and its consequences, especially regarding security of tenure. Smith arguesFootnote ¹⁶ that the extremely broad scope results in the opposite of what the CLRA aims to achieve: basically all persons and communities living under communal tenure are affected by the act, regardless of whether they have secure tenure or not. In addition, the CLRA's application to other land reform mechanisms, such as communal property associations, causes uncertainty, which surely is not conducive to tenure security.

The constitutional mandate for the CLRA is found in the South African constitutional property clause: sections 25(6) and (9) of the 1996 Constitution (the Constitution). Section 25(6) provides that a person or community, whose land tenure is legally insecure because of past racial discrimination, may lay claim either to tenure which is legally secure or to comparable redress, to the extent permitted by legislation. Section 25(9) provides that Parliament will enact legislation to give effect to the ideal of tenure security expressed in section 25(6). These constitutional provisions were endorsed by section 4(1) of the CLRA, which confirmed that a community or person is entitled either to tenure which is legally secure or to comparable redress. As in the Constitution itself, the entitlement to tenure security is subject to the requirement that legally insecure tenure must have been the result of past racially discriminatory laws or practices. The entitlement to legally secure tenure is further qualified in that section 4(1) of the CLRA provided that it exists only to the extent and in the manner provided for in the CLRA and in as far as the available resources of the state permit.

Smith identifies the three broad strategies of the CLRA to achieve this goal.Footnote ¹⁷ First, it aims to “corporatize” land administration, in that it vests communities with juristic personality and provides imperatively for the creation of community rules according to which the land held must be managed. Second, the CLRA promotes security of tenure by individualizing communal land rights and providing registration procedures.Footnote ¹⁸ Third, it also decentralizes public administrationFootnote ¹⁹ in that it devolves the burden of administering and implementing the land rights and community rulesFootnote ²⁰ on traditional councils or land administration committees. These strategies underpin the system for formalized communal land holding as proposed by the CLRA.

The CLRA's scope was intended to be extensive;Footnote ²¹ it dealt with all communally occupied state land, with private communal land and other land as determined by the minister, but it also applied to the beneficiaries of communal land or land tenure rights under land reform laws.Footnote ²² The CLRA imposed a dual system of formalization on all these categories.Footnote ²³ First, it envisaged a land rights enquiry,Footnote ²⁴ very broad in scope,Footnote ²⁵ to be conducted by the ministry to investigate the nature and extent of all affected rights and to make recommendations. Then the minister would make a “determination”, based on the enquiry and various considerations listed in the act.Footnote ²⁶ This would specify what the size and boundaries of the land to be transferred to the community would be, and who the holders of so-called “new order” rights within such communities would be, as well as the content and extent of their rights.

The system established by the CLRA envisaged the award of either ownership or so-called “new order” rights to relevant individuals or community members. Provision was also madeFootnote ²⁷ for securing “old order” rights; these are supposedly rights and land relations locked into the “old South Africa,”Footnote ²⁸ which include any tenure rights in communal land or any other rights over communal land whether formal or informal, registered or unregistered, derived from or recognized by law and including customary law, practice, and usage.Footnote ²⁹ Provision was made for the conversion of “old order” rights into “new order” rights by means of executive action.Footnote ³⁰ Conversion would have been effected by providing for the securing, transferring and/or registrationFootnote ³¹ of “old order” rights. They could also be cancelled and comparable redress could be paid where it would have been impossible to secure tenure.Footnote ³² Consequently, a “new order” right would involve a tenure right in communal or other land which had been confirmed, converted, conferred or validated by the minister under section 18.Footnote ³³

Measures to ensure security of tenure after the determination phase, once various provisions of the CLRA had been implemented, would have included that: the community would have to register rules, which would then afford it juristic personality;Footnote ³⁴ a communal general plan would have to be registered; and a communal register would have to be opened.Footnote ³⁵ Two administrative organs would deal with the management of communal land: the Land Rights Board and the Land Administration Committee (which in many instances would be the traditional council created in terms of the TLGFA).

Smith shows that the CLRA fails to reach its assigned goals.Footnote ³⁶ The argument is that the choice to centralize control and decision-making in respect of communal land undermines the objective of choice of tenure. Simultaneously, while decision-making is highly centralized, the cost of land administration is devolved to the local government level, where capacity and know-how is sorely lacking. A further concern is the extent to which the CLRA would extinguish (valuable)Footnote ³⁷ parts of customary land tenure law, while bolstering traditional leadership structures. Some of the other chapters in Land, Power & Custom explore this point further.Footnote ³⁸

Indeed, the manner in which this system was put in place leaves much to be desired. The CLRA in reality provided for a discretionary system for the conversion of “old order” rights into either ownership or “new order” rights, especially because of the interrelation between sections 14 and 18, which dealt with the land rights enquiry and the ministerial determination respectively. Even with the aid of the land rights enquirer's report, the ministerial determination would be preceded by an extremely complex process. The integrated development plan of each municipality with jurisdiction in a specific area affected by the determination, as well as other land use regulators operative in such areas, would have had to be considered, not to mention the plethora of relevant laws as required. These would be considered against an extensive list of factors that needed to be taken into account in making the determination. Moreover, the minister would not be compelled to gain the co-operation of the affected communities or even consult them in matters directly affecting them. Exclusion of the communities from the decision-making process would be imprudent at the very least, especially where information necessary to resolve disputes (for instance, in respect of boundaries) is held by the community members. At worst, however, exclusion of the communities from the decision-making process would estrange them from the process of acquiring land rights under the CLRA generally, with negative consequences for the perception of the legitimacy of the legislation. In view of these considerations, Smith's concern that the CLRA would achieve the opposite of tenure securityFootnote ³⁹ is valid.

Policy choices: Dilemmas and politics

Several chaptersFootnote ⁴⁰ in Land, Power & Custom touch upon the process that preceded the enactment of the CLRA and the policy choices it embodies. One major debate which needs to be highlighted here dealt with the choice between “titling” and “tenure”.Footnote ⁴¹ In South Africa, land ownership and limited real rights (which are registrable in the deeds registry) only represent a small percentage of the rights in land currently utilized. Yet, most land reform laws aspire to broadening access to land by expanding the base of landowners in the conventional sense of the word.Footnote ⁴² Cousins suggests that such forms of “titling” (that is, formalizing land holding to match the conventional patterns of land ownership) cannot appropriately address the demands placed on the redistribution and tenure security initiatives.Footnote ⁴³ Alternative solutions are sometimes sought by recognizing the diverse forms of tenure that have crystallized under customary law, and then providing statutory reinforcement to afford greater security of title than was the case under apartheid.Footnote ⁴⁴ This approach is referred to the “tenure” option in land reform circles.Footnote ⁴⁵

It is particularly interesting, as pointed out in Land Power & Custom,Footnote ⁴⁶ that the popular preference is for “titling” (ie registered title deeds to land demonstrating “full” ownership), even in rural areas where customary living arrangements are predominant. This is remarkable, since experience elsewhere in Africa, where land reform followed the “titling” option or variations upon it, has generally been disappointing. Cousins points out that the desire for titling pertains not so much to the need for individual ownership of land, as to the need for the reliability of land holding.Footnote ⁴⁷ The motivation is therefore that of title security. The dilemma with various models of secure customary tenure is, however, the perceived illegitimacy of “official” versions of customary law as opposed to “living” customary law, and the uncertainties surrounding the content of customary tenure rights that are concomitant to the core dispute about which version to recognize.Footnote ⁴⁸ In addition, the type of certainty that is achievable in a system of “titling” is by definition excluded in “tenure” systems, as boundaries are more fluid and land management is undertaken in a “nested” manner, at various levels from the household or family unit through the headman of the ward and eventually to the chief.Footnote ⁴⁹

Moreover, the few existing examples in South African land reform law of securing rights by means other than through registration suggest that any solution which does not rely on a land registration mechanism suffers from at least two defects: “one is the inherent lack of certainty that flows from disregard for the publicity principle; the other is the lack of transparency which hinders the ability to give effect to the rights to dignity, equality and freedom, particularly for interest groups like rural black women”.Footnote ⁵⁰ Claassens and Ngubane's account of the ordeals of, in particular, single women living under communal tenure reinforces the view that statutory reinforcement of existing tenure does not currently meet the constitutional standard of ensuring dignity, equality and freedom for all living under these arrangements.Footnote ⁵¹

The CLRA tried to combine elements of both “titling” and “tenure”, but “ended up with the worst of both worlds”.Footnote ⁵² Individual community members would hold no more than vaguely defined secondary rights, while ownership would vest in the large group, represented by a structure exercising ownership on behalf of the group (ie the land administration committee). The challenge, accordingly, is to find a mechanism endorsing the tenure system which provides for tenure security in a manner suitable to the nested systems of land management. This raises questions about in whom rights should vest, and who should exercise the associated decision-making powers.Footnote ⁵³ The fact that the tenure issues to be addressed are “communal”, compounds the problems: “land rights and resource-use decisions in most communal tenure systems in Africa are defined at different levels of social organisation, not just at one level, and there are thus different layers of ‘community’ to consider”.Footnote ⁵⁴ Further, there is the policy challenge of deciding which claims of land to confirm and which to ignore. This is particularly difficult in contexts where the drive towards securing tenure for de facto possessors clashes with the objective of restitution to correct past injustices of forced removal.Footnote ⁵⁵ In addition, there is the need to foster democratic processes in decision-making and administrative processes at a local level and to promote social and economic development.Footnote ⁵⁶

Land, Power & Custom does not propose conclusive solutions to these interrelated problems, but it points out the difficulties with the mechanisms proposed by the CLRA in this regard.Footnote ⁵⁷ In as far as the act provided for ownership of land to be transferred from the state to communities, it pursued the “titling” option. The act's mechanism of the “deed of communal land right” would secure individual members' rights. The land administration would in many areas be entrusted to “traditional councils”,Footnote ⁵⁸ which are often nothing other than the tribal authority which amounts to the highest tier of decision-making in many communal settings. This proposition took no heed of the “nestedness” of land management in the communal areas, neither did it deal with the fact that boundaries often are fluid and that land rights overlap in many instances. As such, it eroded the security of tenure that exists as a result of the various levels of accountability, and did nothing to promote the democratization of land administration.Footnote ⁵⁹Land, Power & Custom points out that these shortcomings are the results of political lobbying,Footnote ⁶⁰ and the government's desire to bolster the position of traditional leaders. It was done at the cost of successful reform of the communal land-holding system. It renders the CLRA vulnerable to claims that it is unconstitutional for various reasons. These are discussed below.

Constitutionality debate

The constitutional challengeFootnote ⁶¹ was brought by the communities of Kalkfontein, Dixie, Mayaeyane and Maluleke. These four communities have various objections against and concerns with the CLRA.

In the case of Kalkfontein, the community's difficulty was with the perceived illegitimate tribal authority imposed upon it under apartheid, which was perpetuated under the CLRA and the accompanying TLGFA.Footnote ⁶² Their disputed tribal authority was reconstituted as a traditional council and in terms of these laws now may allocate land rights and act on behalf of the community members when communal ownership is to be exercised. These same powers were used to undermine ownership rights of the community members in the past. The community's claim to the court was brought in a bid to halt further erosion of its ability to exercise ownership rights independently from the traditional council. The community feared that the CLRA may result in a reversal of its “hard-fought efforts to contain abuse of power by the tribal authority, and that the Act [will] jeopardize their ongoing efforts to exercise their ownership rights independently”.Footnote ⁶³

The Dixie community's disastrous experience with its traditional authority induced it to challenge the CLRA on the basis of the powers allocated to the land administration committee. It was argued that the powers awarded by the CLRA to traditional councils acting as a land administration committee would undermine existing decentralized participatory decision-making processes in the villages.Footnote ⁶⁴ The Dixie community further questioned its incorporation under the Mnisi Tribal Authority.

The applicants from Mayaeyane did not question the legitimacy of the tribal council, or that the community falls within its boundaries, and in this manner may be distinguished from the Dixie community.Footnote ⁶⁵ The Mayaeyane community opposed the CLRA because of the power it vests in the traditional leader to make unilateral decisions about land holding and control and to make decisions about delegated leadership without consulting the community. The applicants from Mayaeyane were concerned that the CLRA and the TLGFA would exacerbate the tendency towards high-handed and self-serving behaviour by traditional leaders.Footnote ⁶⁶ On this point, the judiciary was called upon to shed light on the status of family-held land rights, relative to chiefly power over land.

The Makuleke community benefited from a restitution award, which returned land incorporated in the Kruger National Park to the community, to be administered by a communal property association and to be used for the purposes of eco-tourism.Footnote ⁶⁷ The community challenged the CLRA, based on concerns that it, together with the TLGFA, would place the community firmly under the control of a traditional authority (the Mhinga) with which it has a long-standing dispute about its independent identity. Community members fear that implementation of the CLRA will result in their successes concerning the restitution settlement becoming undone,Footnote ⁶⁸ rendering their tenure insecure all over again.Footnote ⁶⁹

The case studies undertaken in respect of these communities in Land, Custom & Power illustrate some of the difficulties and challenges mentioned above, especially around the consequences of policy choices on existing tenure arrangements. Claassens and Hathorn summarize this well with their remark that the “dynamics of accountability are fundamentally undermined … once fixed jurisdictional boundaries are imposed and traditional leaders get their power directly from central government”.Footnote ⁷⁰ The CLRA and TLGFA do precisely this: they “entrench apartheid boundaries in the name of tradition” and simultaneously “free traditional leaders from indigenous accountability constraints”. In this manner the acts skew existing relationships in respect of land and authority.

The potential consequences are bleak. Beyond the “high-profile deals over valuable land” that may be brought about by the state's policy to back traditional leadership structures at the cost of various aspects of communal living and tenure, there are “serious implications for the land base and composition of rural communities”Footnote ⁷¹ if the powers of traditional authorities to decide on land allocation go unchecked. The CLRA and TLGFA, it is argued, undermine the capacity of people living on communal land to contain abuse of chiefly authority.Footnote ⁷²

An issue which was raised in Tongoane is the extent to which the exercise of the broad ministerial discretion afforded by section 18 of the CLRA may be unconstitutional. Focusing on this section only, it may be argued that the CLRA failed to give effect to the underlying constitutional right entrenched in sections 25(6) and (9) of the Constitution and failed to determine the extent and nature of that right; and that the CLRA failed to give constitutionally consistent guidance in the process of decision-making prescribed by the act. Section 18(3) of the CLRA would grant extensive discretionary powers to the minister to give effect to the task embodied by sections 25(6) and (9), thereby effectively shifting the responsibility for realizing the constitutional provisions from the legislature to the executive organs of state.

This holds serious implications for legal certainty and the rule of law. First, if the minister decides to convert “old order” rights into “new order” rights, he or she may determine what the content and extent of the newly awarded right or rights will be, or cancel them, whichever the case may be. An extensive ministerial discretion such as the one envisaged in section 18(3) of the CLRA could therefore divest the legislature from its prerogative to determine the scope and content of rights created in the context of land reform. Secondly, the minister's discretion is extensive to the extent that it may affect a decision on whether rights may be made legally secure at all, and what the content and nature of comparable redress to a holder of an “old order” right should be.Footnote ⁷³

Thus it remains entirely within the discretion of the minister to decide whether someone is entitled to legally secure tenure, and what the extent of any possible entitlement will be. The effect is that what is supposed to be a constitutional right (the right to legally secure tenure contained in section 25(6) of the Constitution) is entirely within the discretion of an executive organ: the Minister of Land Affairs. The CLRA effectively reduced a constitutionally entrenched right to something precariously within the prerogative of the state administration.Footnote ⁷⁴ In addition, it may be argued, the CLRA did not give adequate guidance, in constitutional terms, to officials as to how they should exercise that discretion.Footnote ⁷⁵ Certainty, a key aspect of the rule of law (and a core component of tenure security), requires that laws should provide clear guidelines when constitutional rights are concerned and constitutional rights should not be dependent on the discretion of a minister or a state functionary.Footnote ⁷⁶ It is the contention here that the already rather long list of issues to be attended to by the land rights enquirer in terms of section 14(2) of the CLRA omits key considerations which are not conducive to the principle of certainty. The determination is open-ended in the extreme, which poses significant challenges to the attainment of legal certainty and concomitant tenure security.

On the point of the constitutionality of section 18 of the CLRA, the lower court's decision in Tongoane was puzzling in the least. It held that the CLRA provided sufficient guidelines and factors for the minister to take into account when making his decision,Footnote ⁷⁷ which suggests that the ministerial discretion under section 18 is above board and hence constitutional. The judgment nevertheless expresses concern over the fact that the exercise of ministerial discretion in terms of section 18 puts the land tenure of certain communities at risk.Footnote ⁷⁸ It concluded, eventually, that section 18 was indeed unconstitutional and invalid (along with many other provisions of the CLRA).Footnote ⁷⁹ The order of invalidity by the North Gauteng Court had to be confirmed by the Constitutional Court under section 167(5) of the Constitution to have any effect. In Tongoane 2010, the Constitutional Court confirmed these substantive objections, and further upheld an appeal against the lower court's ruling against procedural objections. The effect was that the CLRA was found to be unconstitutional in its entirety.