October 2003
During the first decade of freedom, the ANC-led government embarked on a programme of land redistribution and reform, to address one of the major legacies of colonialism and apartheid.
The major pillar of this programme has been the restitution of the land which was unjustly taken away from its rightful owners under the notorious Native Land Act of 1913 and other apartheid laws of dispossession like the Land Act of 1926, the Group Areas Act, etc. It also involves the redistribution of land to black rural communities, and reforming the system of land tenure rights so that those who live and work on the land have security.
This land reform programme is benefiting thousands of historically disadvantaged communities and individuals who have a rightful claim to their dispossessed land.
As part of this programme, the ANC-led government introduced Communal Land Rights Bill in 2002. This Bill seeks to give land owning communities land tenure rights, which are protected by law. It will also give communal land ownership to communities who have received land from the state.
Currently, the land tenure rights of communities and individuals living in communal land are not recognised and protected by law. As a result, it is difficult for communities to raise finances for development in their areas.
The problem of overcrowding of communal land leads to poor utilisation of this land and greater levels of poverty.
There are conflicting land tenure rights and interests in communal land and this leads to land disputes. There are no streamlined mechanisms to resolve disputes.
Women do not have secure land tenure rights and are excluded from participating in determining how the communal land should be used
The Constitution requires the democratic state to take reasonable legislative and other measures to enable citizens to gain access to land on an equitable basis; and to provide secure tenure of land to communities, individual households, and individual families whose land tenure is insecure as a result of the racially discriminatory laws of the past.
The Bill has been introduced after extensive consultations with all stakeholders. Among other things, it:
This Bill provides for democratic participation in the administration of communal land and recognises alternative dispute resolution mechanisms for the resolution of conflicts and disputes concerning communal land rights.
Most importantly, this Bill provides for protection of fundamental human rights through upholding the right to equality, especially gender equality for ownership, allocation, use and access to land; the democratic right of a community to choose the appropriate land tenure system, community rules and administrative structures governing their communal land; and the right to democratic participation
Among the mechanisms in the Bill to ensure the law recognizes land tenure rights held by communities and individuals includes providing legal protection of land tenure rights of communities using communal land which were not recognised as result of past discriminatory laws.
It provides steps for ensuring that land tenure is secure, including the setting up of a land rights inquiry. The Bill further provides mechanisms that must be followed when land tenure rights are to be cancelled.
It provides for transfer of state land to communities through the opening of a communal land register, the registration of the Deeds of Land Tenure Rights and the Deed of Transfer.
It establishes a Land Rights Board and other mechanisms to resolve disputes.
It guarantees and defends the rights of women to access and own land, including securing their land tenure rights. The bill also ensures democratic participation of community members in the affairs of the running of communal land.
This bill emphasises the democratic participation of all community members in the management of communal land and natural resources according to the rules agreed by the community.
However, it makes provision for traditional leaders to participate in the administrative structure which is democratically elected by communities. Traditional leaders will not have veto powers in the administrative structure.
The bill further stipulates that the Minister may appoint two members nominated by each Provincial House of Traditional Leaders to the Land Rights Board.
This bill gives meaning to the clause of the Freedom Charter which states that "the land shall be shared amongst those who work it".
It represents efforts of the ANC-led government to ensure that the tenure of rights of communities, and individual families in communal land are legally secured.