By Leslie Bank and Clifford Mabhena

Introduction

On May 11, 2010 SABC News announced a declaration by the Constitutional Court that the court had found the Communal Land Rights Act unconstitutional and therefore could not be implemented in its entirety. The court found that there was inadequate consultation with communities and provincial structures prior to the adoption of the Act. Communities from Kalkfontein and Dixie in Mpumalanga, as well as Makuleke and the Makgabistat in the North West, objected to the Act on the grounds it reconstituted apartheid era community boundaries and entrenched existing tribal structures. Furthermore, they argued that the Act would perpetuate insecurity of tenure by only titling the outer boundaries of communities and would undermine the ability of local communities to control and manage land. Academics such as Cousins (2008), Smith, (2008), Murray and Stacey (2008) stated that the Act did not take into account the issue of ‘living customary law’ practices on the ground and sidelined ordinary citizens and public rural voices in the process. Justice Ngcobo concluded that parliament had followed an incorrect procedure in enacting the Act, and granted the application for leave to appeal.

In response to the judgement, the Minister of Land Affairs, Gugile Nkwinti said that his Department would not contest the judgement, but would revisit the law and formulate a new Act. With CLaRA gone (or going), we need to ask what potential effect or impact the absence of tenure reform in communal areas might have on land management, political authority and development in the Eastern Cape?  How can the new focus on rural development in the province and the country, which has been prioritised over the past year, be realised in the absence of clear laws and regulations governing the management and control of communal land?

In this paper we reflect on how CLaRA was received in the Eastern Cape and on the consequence of the current impasse in relation to land management in communal areas. We argue that, in contrast to the situation in the Northern Province, there was considerable optimism in rural communities that CLaRA could improve land use management and relieve some of the tension and conflict that exists between traditional and elected authorities. Some of these communities were optimistic that CLaRA could drive forward rural development if it was associated with clear plans for local economic development, but now wonder what impact the court’s decision will have on their lives.

CLaRA as Hope for Development

In 2008, the Fort Hare Institute for Social and Economic Research completed a study on land management and use across 35 traditional authorities and 14 local municipalities in the Eastern Cape to assess the views of rural people on this topic, and their readiness for the role out of CLaRA. The study was commissioned by the National Department of Land Affairs, but was not released for public consumption because of the ongoing court case. The findings were based on the administration of questionnaires to 2045 rural households as well as interviews with local stakeholders, including traditional authorities and local municipal officials. The study supports the court’s finding that there was limited consultation at the local level concerning the legislation and we found that there was considerable lack of knowledge about the Act in many of the communities visited.

However, where communities were well informed there was certainly not an unequivocal rejection of the law. Many people expressed the view that CLaRA had the potential to transform rural land management and governance in a positive direction and help to unlock development potential in rural areas.  One TA member from Qumbu said:
“CLaRA has taken too long to come, because I would like to apply for a title deed for my land so that I can use it as security for my investments and seek loans. I know that government will pay for the outer boundary titling and individuals then can apply and pay for their homesteads; I am prepared to pay whatever charges are required. We read in the media that other communities were contesting CLaRA, but in our community we saw it as a step in the right direction to allow people to have meaningful tenure security for their properties. How long should we remain in properties that do not have value when it comes to issues of collateral; banks do not recognise PTOs [Permission to Occupy Certificates] as collateral,” he lamented pointing to his two storey house in rural Qumbu.

Other community representatives also saw that CLaRA presented opportunities and possibilities to improve rural livelihoods and enhance security of tenure. Representatives outside of the tribal authorities expressed the view that CLaRA had the potential to create a fairer system of land allocation and could introduce ‘checks and balances’ to limit the power of chiefs and headmen over land allocation in communal areas. The study found that across the Eastern Cape traditional authorities dominated the allocation and control of residential and arable land in communal areas. In a survey of 2045 households in 35 different traditional authority areas in the former Transkei and Ciskei, 93% of households said that chiefs or headmen were responsible for allocating residential and arable land in their areas. Only 3% said that land was allocated by ward councillors or other officials in the local municipalities, and less than 1% that a local civic or residence association did this work. When asked who in their view should control the allocation of land in communal areas, 84% of households said that this should rest with traditional institutions. 12% said local municipalities, civic bodies, government departments or village/ward representatives should administer communal land.

When residents were also asked to respond to the statement that ‘the current system for the allocation of land is fair and works well’, 70% of households endorsed that statement, while 10% were neutral and 20% disagreed. Moreover, the research showed that 74% of the 2000-odd households interviewed has been allocated their residential and arable plots through the tribal authority structures, 23% inherited their plots and the remaining 3% either bought or rented them. The scenario depicted here indicates that over 90% of households have accessed the land on which they live through traditional authorities. The fact that less than 1% of the land was allocated by local municipalities is indicative of the limited role they still play in communal land access, allocation and administration. It is not surprising then that the traditional leaders we spoke to regard the allocation of land in their areas as an incontestable right, something that they felt was non-negotiable.

In this context it is also quite understandable that local community members and municipal officials felt that CLaRA offered some potential to curb the enormous power that traditional authorities wielded over land allocation. Discussions with community residents found that while the current system of land allocation was widely accepted, households wanted to cut out corruption and the abuse of power. Many supported the idea of the proposed CLaRA land committees, because they viewed these as places to which they could go to report irregularities or unfair land administration practices. Residents also felt that these committees could play a role in formalising title by giving them some certificate or letter indicating that they had rights to the land on which they lived and were entitled to stay there. Municipal officials, on the other hand, saw CLaRA as a means through which they could gain greater control of land administration in rural areas and extend their political influence. They complained that their lack of control of land administration in rural areas inhibited their ability to deliver development. Community leaders and chiefs dismissed these claims, saying that such complaints were just a feeble excuse for the non-delivery of services.

At the household level we found a strong demand for greater security of tenure. The study showed that security of tenure was not generally under threat in communal areas and that there was a very high level of residential stability in most of the communities surveyed. About 73% of the households interviewed said that they had always lived in the village or settlement they were in, while a further 12% had grown up in another village in the same tribal authority area. Data from TA interviews indicated that ‘outsiders’ were generally only granted access to residential plots if they can provide a letter of recommendation from their chief or headman in the area from which they came. In many TAs families seeking land were expected to offer a beast as ‘a token of appreciation’ (urhafa) to stimulate the negotiation process with traditional leaders (mostly headmen).

In this context, many households expressed a desire for some form of individual or family title to the land they occupied. The study found that only 5% of households in the sample had a title deed, 34% had Permission to Occupy (PTO) certificates from the authorities and a further 20% had a letter (or authorisation other than a PTO) giving them the right to occupy land. As a result, fully 40% of the residents on communal land in the Eastern Cape have no written proof that they have a right to occupy the land on which they live, while a further 20% had “letters”, which were not necessarily legally binding. Many households therefore wanted their rights to land to be formalised and felt that CLaRA was a means through which this could be achieved.

Community members suggested that higher levels of community representation were desirable and had the potential to create a more open and consultative process of land allocation. They viewed the formation of Traditional Councils as a positive development, and improvement on the status quo, which could gradually extract land management away from small groups of chief and their advisors. Indeed, it was found out that the chief’s handpicked advisors (amaphakathi) were very influential in matters of land allocation. It was hoped that the formation of Land Committees would break the power of the amaphakathis. However, in the absence of the implementation of CLaRA, older systems of land allocation, which were criticised at the village level, remained unchanged.

In general, most rural villagers believed that traditional authorities should continue to play a central role in the allocation of land. Few expressed the view that land allocation should be handed over to democratic institutions, such as local municipalities or to other structures that excluded chiefs and headmen from playing a central role. However, they did claim that there needed to be mechanisms where chiefs and headmen could be made to account for their decision they made in relation to land allocation. They saw the idea of creating Land Committee structures with a combination of elected and appointed representatives as a good compromise, as a way to control the abuse of chiefly power.

Women’s Access to Land

Of the various groups consulted in rural areas, women were the most vociferous in their demand for change in land management and allocation in rural areas. They expressed disappointment in the manner in which the Traditional Councils have been constituted after 2003. They stated that, where such Councils existed, they continued to marginalise women, despite provisions for greater inclusion and representation. In the new Traditional Councils 30% of the members are supposed to be women. They said that, while local men now had more voice in local affairs through participation in such Councils, women remained voiceless and powerless because the only women elected to these structures were the wives or associates of the local traditional leadership. They said that they feared that this would be translated into exclusion when it came to land allocation. One woman in Ntabankulu stated that:

“It is my first time to hear about CLaRA and really I feel this Act will not change anything, especially for us single mothers. If it is true that the Act will allow us to be allocated land on our own rights, not like now where by a male relative should be a guarantor for you to get a stand, I will support it. If it allows the present system where male traditional leaders have the powers of allocating land, well it does not serve the situation for us single mothers.”

In the Gibisela area, the TA acknowledged that women attend traditional Council meetings but their participation in deliberations is limited because of “traditional customs”. In this TA, members partake in trivial deliberations in the presence of women and, after the official closure of the council meeting, male TC members remain behind to make final decisions on important issues.

In some TCs in Mpondoland women were excluded entirely. The argument made there was that women are not, traditionally, at liberty to question decisions of men in issues pertaining to customs and norms. What was clear overall was that men still dominate rural governance, including land allocation and administration, despite the fact that women constitute over 50% of the rural population. Lack of effective participation at this level, some complained, was also having a negative impact on women-initiated development projects, which are often not supported by the traditional authorities.

At the local level, it was also found that the allocation of residential stands to women often depended on their marital status and this varied from TC to TC. In most TCs married women were not allocated residential land in their own right. Married women were regarded as part and parcel of the male household and denied access to a separate plot for their own use. In almost all TCs, married women ‘accessed’ residential land through their spouses. An iphakathi in one TC even related the practice of allocating a site to a married woman to divorce by saying: “Hayi asizoze simnike umafazi othstileyo inxiwa lakhe, kaloku loo nto ingathetha ukuba siqhawula umthsato.”

Allocation of residential land to unmarried women also varied from TC to TC. Chiefs differed in their approach to the allocation of land to these women. Some chiefs accepted the need for women to independently access land, while others were more resistant to the idea. One headman noted that the practice of giving land to women is new and they are still in the process of learning to accept it, hence there is no consensus even within the TC. He stated that: “Kusenzima ke bantu bakarhulumente kwezinye iibhodi apha kwezilali zethu ukuyamnkela into yokunika oomama ingakumbi amantombi umhlaba, kodwa ke kule yam ilali sivumelene ukuba simnike umntu nokuba yintombi nje ukuba uneminyaka eyi 18 kwaye uyasebenza.”

In areas where SANCO structures existed or still exist, it was found that women generally had acquired land more easily – as well as other rights. However, in some of these areas women were allocated smaller pieces of land than their male counterparts. In most of the former Transkei areas, unmarried women had access to land provided they had children. In addition these women were required to approach the traditional structures accompanied by male relatives who it is assumed would act as guarantors. In the real sense these male relatives actually negotiate on their behalf. As indicated by TCs and our own observations, on the whole women are passive listeners in TC and other TC structures’ meetings, rather than active players. There were very few instances where single women without children had access to land in TC areas. Access to arable land by women also depended on where and with whom they stayed.

Traditionally, single women staying at their parents’ home can benefit from the family arable land through common cultivation. However, if the woman has her own residential land, she is free to apply for arable land following community rules set for this purposes. For instance, in some TCs for one to get arable land irrespective of gender one is obliged to have stayed for at least three years in the TC area. In others, a person allocated residential land is automatically allocated arable land. One chief noted, “Siyayinika intombi enabatwana umhlaba side siyinike nentsimi ukuze ilime kubekho ukutya kokondla abantwana, kodwa siyoyika ukunika umhlaba intombi engenabantwana inxiwa kuba kaloku ingasuke ihlalise amadoda abantu kuloo mzi kubekho iingaxabona ke.” Literally translated that means: “We give land to women with children – both residential and arable land – so that they can grow food for the children and themselves. We are sceptical of giving land to unmarried women/single women without children because they may cause social problems in the villages.” Chiefs, therefore, maintain that they have reasons not to give land to unmarried women and one reason often mentioned was that of safeguarding the communities.

Two Bulls in One Kraal, or a Bull and a Lamb?

In the discussion of CLaRA we also found that a lot of criticism was also levelled against local and district municipalities. Village residents stated that CLaRA was meant to bring new development and they supported that idea, but wondered how that development would come in the absence of clear land use and development plans at the municipal and district level. One man explained: “What is the use of reform in land tenure when no-one seems to have any idea what the reform will achieve in terms of development. We need development plans for the TAs before tenure reform becomes meaningful, we need to know what forms of land tenure are going to create jobs and rebuild the agricultural economy.” Another man explained that:

“Each family wants to get land to live and this is done through the chiefs and headmen. We are happy for the chiefs and headmen to allocate this land as long as they do not discriminate and give all the best land to their relatives and exclude others. Women are demanding land, but not everyone is getting it. There is a need for more transparency in this. But if we talk about development, about jobs, factories, brickwork, timber yards and farms, chiefs cannot manage this process. They must work together with the Local Municipalities (LM) and the development agencies. This is not taking place. I am disappointed that CLaRA is not being implemented because it would encourage development. It would force the authorities to define the development priorities for each TA and each municipality.”

The findings from the CLaRA study clearly revealed that relationships between traditional authorities and elected councillors are fraught across the Eastern Cape and numerous examples of competition and conflict between the two institutions were recorded, especially in the way they viewed development in the rural areas. LMs and their sub-substructures saw themselves as the ones mandated by the National and Provincial governments to deliver services to communal areas. They argued that LMs and their upper tier District Municipalities (DMs) had the mandate to provide services, such as water and sanitation, electricity, roads and other infrastructural and social facilities within their municipal boundaries. On the other hand, traditional leadership structures argued that LMs are not delivering services and suggested a re-think in their roles as providers of services. They felt aggrieved that they were not properly consulted when municipalities came into the villages. Traditional leaders demanded more powers to preside over development activities in their areas. They demanded a larger role in process of rural service delivery. They argued that they could mobilise communities at the local level and ensure that local communities were mobilised around service delivery and that there was effective participation in this process.

Local municipalities felt the resistance from tribal authorities and often avoided intervention in certain traditional areas as a result of this. Where they were involved there was often conflict over the form and nature of development interventions and the issue of slow or non-delivery. Some local municipality officials claim that they avoid the communal areas, because negotiating development there is an ‘uphill battle’. They argue that delivery targets are impossible when tribal authorities will not cooperate. Ward committees were blamed for their failure to spearhead local development. They lack capacity and most of them work as volunteers. One striking feature of failure of local government in the Eastern Cape is that elected local government representatives pay allegiance to their political parties rather than the electorate.  At LM level, development has been frustrated and will continue to suffer, because of a lack of capacity and inexperience in institutional organisational development. High staff turnover and political interference in municipal activities has had a negative impact in the development agenda of these institutions. One respondent stated: ‘These new municipalities here in the former Transkei are inept, they can do nothing, because they have no capacity and are corrupt.” He went to say: “These are not proper, functioning democratic structures, they are more like corrupt tribal authorities in town.”

Another criticism levelled against municipalities that there are no clear development plans and priorities for the rural areas. “How can you have land tenure reform,” one community leader explained, “without broader development plans and proposals? The main reason for tenure reform, as I understand, is the need for investment and development in communal areas, but without any proper development, it is difficult to know what development can be achieved through CLaRA.”  Many of our informants said that CLaRA would be beneficial, because it would force local authorities and traditional authorities to start working together in the rural areas. “The LMs don’t care about the rural areas, they just look after the people in town,” he said. “When they come into our areas they are arrogant and do not consult, but just inform us about what has been decided,” he continued.  While some local authorities saw CLaRA as a way to begin to exercise more control of the land in rural areas, there was a fairly common belief that the implementation of CLaRA would help to bridge the gap between traditional authorities and local municipalities, because it would create a framework for co-operation.

Conclusion

By compressing research findings from interviews in 35 traditional authorities areas in the Eastern Cape into a short article there is always the risk that local dynamics and regional differences get lost. Many might say that the political history of the former Transkei and Ciskei are so very different and that traditional authority structures are much weaker in the latter area. We found this to be the case, but it was also noted that in a number of areas where civics or resident’s associations had allocated land in the 1980s, traditional leaders had once again taken over this role.  The power of traditional leaders in the province has also been shored up the consolidation of an increasingly powerful provincial house of traditional leaders. In the former Transkei, the liberation movements always struggle to make inroads in rural communities, where chiefs often resisted their presence. In the Bantustan era there were also very few areas where traditional leaders were progressive and opened up opportunities for democratic organisation. The legacy of this history is still felt today. Thus, while the responsibility for development planning lies with local municipalities, traditional leaders exercise tight control over land allocation and administration in communal areas. People who live in these areas do not contest that traditional authorities have a critical role to play in land allocation, but they also welcomed the possibility of some external agencies monitoring the way land was managed. The creation of land committees through CLaRA with broader representation at the community level seemed like a good idea to many we spoke to as it seemed like a way to introduce checks and balances in the way traditional authorities operated.

In general, people felt that CLaRA would be a positive development because it would help to achieve the following: (1) reduce the power that chiefs, headmen and their advisors over land allocation, (2) allow families and households to confirm household or family title to land in communal areas, (3) create a framework for better cooperation and interaction between municipalities and traditional authorities, and (4) force government to start to develop meaningful land use and development plans for rural areas. For many rural communities in the Eastern Cape, CLaRA, while far from perfect, was widely seen as a step in the right direction. It was viewed as a pro-development move that could bring positive change. However, the research also demonstrated that the newly created Traditional Councils, where traditional leaders and community members served on the same councils together, did not work as intended, because traditional leaders ensured that only their close allies came onto the councils. The danger of CLaRA structures being hijacked by traditional authorities and only serving tribal narrow interests was always there. However, it seems that CLaRA was equally capable of unlocking old apartheid structures and creating new possibilities for development.

In the end, it seems that with CLaRA shelved and with no immediate prospect of it being replaced with a new law, we are back to the bad old days in the communal areas, where chiefs completely dominate land allocation and administration. Chiefs and headmen in the Eastern Cape will be ecstatic that the law has been set aside because it means that, at least as far as land management is concerned, it business as usual for the foreseeable future.

Leslie Bank and Clifford Mabhena work at the Fort Hare Institute of Social and Economic Research

References

Cousins, B. (2008) Contextualizing the Controversies: Dilemmas of Communal Tenure Reform in Post-Apartheid South Africa in Claassens, A. and Cousins, B ed. Land, Power and Custom: Controversies generated by South Africa’s Communal Land Rights Act. Cape Town: UCT Press.
FHISER (2008) Report of the Baseline Study of Communal Land Rights Act (Eastern Cape), Monitoring and Evaluation Directorate, National Department of Land Affairs, Pretoria.
Murray, C. and Stacey, R. (2008) Tagging the Bill, Gagging the Provinces: the Communal Land Rights Act in Parliament in Claassens, A. and Cousins, B ed. Land, Power and Custom: Controversies generated by South Africa’s Communal Land Rights Act. Cape Town: UCT Press.
Smith, H. (2008) An Overview of the Communal Land Rights Act 11 of 2004. in Claassens, A. and Cousins, B ed. Land, Power and Custom: Controversies generated by South Africa’s Communal Land Rights Act. Cape Town: UCT Press.
South African Broadcasting Corporation, News, 11 May 2010.