The issue of land is an omnipresent ball of contention the world over. Africa has been has been grappling with finding appropriate and fit-for-purpose land tenure and ownership models and South Africa is no exception to this phenomenon. South Africa has recognised the need to implement land reform hence the much talked-about Land Reform Programme of South African government since the dawn of democracy in 1994.
The Land Reform Programme should not be narrowly construed to be about only transferring land ownership from white owners and the state to new black owners. It should also be viewed as the comprehensive attempt by the State to bring equality in terms of land ownership and ushering in land tenure systems to conducive to fostering social and economic development and empowerment.
There have been several legislative processes aimed at ensuring security of tenure for the poor and often marginalised sections of the society such as farm labour tenets and/or farm dwellers and women. These processes include the promulgation of the Security of Tenure Act (STA) and the Extension of the Security of Tenure Act 62 of 1997 (ESTA), to name but a few. However, there is still ample room to improve on the issue of tenure reforms including the development of an appropriate recordal system to formalise “ownership” of land, even in communal areas.
A significant body of research demonstrates the importance of secure property rights to land is a precondition for land-related investment in many settings. Farmers who have only insecure or short-term land rights are unlikely to invest their full effort, to make long-term improvements attached to the land (including services and long-term investments on ecologically friendly production methods such as soil conservation and soil carbon sequestration), or to exchange it with others who may be able to make better use of it, thereby reducing agricultural productivity and possibly hindering emergence of a vibrant non-farm rural economy.
The same is true for urban residents and it is now increasingly recognised that, as a consequence, land and the institutions governing its ownership and use are of great importance for broader economic growth and poverty reduction from a much broader range of perspectives.
Thus, improving the security of tenure and the property rights for millions of poor in rural and urban areas of South Africa and other sub-Saharan African countries, is a colossal challenge. Currently conventional systems in South Africa, particularly rural areas under traditional authority, are construed as not functioning adequately.
In South Africa, the land titling and cadastral system cover a small portion of the country’s land. This is not unique to South Africa, in most of the developing world, including most countries in South America, most countries have less than 30 percent coverage. Uganda for example, has 15 percent coverage, as does Kenya. While Namibia has most of its land surface covered, the majority of its population, who live in the north of the country, are not covered by a land titling system.
In 2002, a study undertaken for the World Bank on some of the best practices in African countries found that even in the most innovative of countries the land administration systems are not functioning well and are not useful to the majority of the population. For example, the time taken for registration of a title is anything from six months to 10 years, records are generally poor, the majority of the population does not have a title deed, and millions of titles would still have to be registered if that is what people want.
It is clear that there are user problems in South Africa with conventional land titling systems. The major problems users have are that these systems do not fit the customary systems, or group and family rights. Furthermore, systems are centralised and inaccessible and, above all, they do not solve land conflicts. It is also important to highlight the fact that they do not protect women's land rights sufficiently, a critical issue in the light of both the HIV/Aids and Covid-19 pandemic crises. Finally, they are too expensive and not transparent.
The transformation of a land administration system is a large undertaking and normally involves the reform of a number of separate agencies. Furthermore, transformation involves alterations in power and patronage and extensive civil society debate at both national and local levels.
Adding complexity is the fact that land is cross-sectoral and, of course, is considered key to poverty alleviation. The study undertaken for the World Bank (covering Ghana, Mozambique, Namibia, South Africa and Uganda) showed that it took at least eight years, and often 11 or more, for a country to get from discussing land policy to the point of implementing it at scale.
In short, tenure issues are extremely complex. Therefore no single tenure option can solve all these problems. Policy on land tenure and property rights can best reconcile social and economic needs by encouraging a diverse range of options, rather than putting emphasis on a single option, typically land titling. This will involve adapting and expanding existing tenure and land administration systems, where possible, and introducing new ones selectively. Types of useful rights for the poor include anti-eviction rights, occupancy rights or the right of possession, adverse possession rights and family/group rights
One of the most critical issues to be addressed in the land administration designs relates to the realisation that the design must have national applications, be affordable to the poor, and yet not override customary and informal (local) tenure where it is the tenure of choice.
It is encouraging to note the private sector and international organisations such as the Food and Agriculture Organisation of the United Nations have shown interest in lending support to the South African government in addressing land tenure reforms culminating in the development of a South African land tenure recordable systems.
South Africa would do well in employing the use of technology such as Global Positioning System and the extensive information on soils in the country in possession of the Agricultural Research Council and the Department of Agriculture, Land Reform and Rural Development.
Dr Thulasizwe Mkhabela is an agricultural economist and is currently the Group Executive: Impact & Partnerships at the Agricultural Research Council; [email protected].
*The views expressed here are not necessarily those of IOL or of title sites.
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