Land Reform in South Africa: An Overview - Centre for Civil Society

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This provision was included in the Bill due to pressure from traditionalleaders who saw the Bill as undermining their authority and control over thepeople in their areas. Nearly every communal area *311 community has atraditional leader and a traditional council. Members of these councils areappointed by the traditional leader. Although the new Traditional Leadershipand Governance Framework Act (TLGFA) [FN96] now provides that traditionalcouncils must have an elected element, this is still not satisfactory. TheTLGFA provides that a traditional council should consist of traditionalleaders and members of the community appointed by the senior traditionalleader concerned and elected members of the community who must comprise 40% ofthe council. This means that traditional leaders and their councilors form amajority on councils and will continue to control decisions on land mattersunder the new law. The intended democratization of land administration willthus be frustrated. [FN97] Land boards appointed by the Minister are supposedto keep a watch over the activities of land administration committees but thismay not be a sufficient safeguard. The retention of unelected structures isnot justifiable in a democratic South Africa especially with regard to landadministration, which has been the cause of so much suffering and poverty.CONCLUSIONSouth Africa's land reform programme is to be applauded in its attempt toameliorate the wrongs of the past and its intentions to bring about a moreequitable distribution of land. Restitution is proceeding fairly smoothly andshould be completed in 2 years or so. Although it has brought justice to some,it can never fully compensate the suffering caused through dispossession. Itcan only be a step towards healing and reconciliation. As far as overalldistribution of land is concerned it is still grossly unequal and will be sofor a very long time. Nearly 10 years after the end of the apartheid state andonly about 2% of the land transferred, there is need for acceleration ofimplementation of the redistribution programme. The state may have to modifythe market-based willing-buyer willing-seller approach to a moreinterventionist supply-led strategy in order to make a real advance towardsits goal of poverty alleviation and equitable distribution of resources. TheRestitution of Land Rights Amendment Act 2003 is a step in the right directionin giving the Minister more powers of expropriation without a court order.However, this power needs to be extended to redistribution as well. Regardingtenure reform the state is failing to protect farm dwellers against evictionsor to provide those evicted with alternative land and tenure security does notexist for many. The justice system, including police, prosecutors and thejudiciary needs to be transformed before *312 the right to security can berealized for those whom the Constitution and the law seek to protect. TheCommunal Land Bill once passed should improve the security of tenure of ruralpeople living on communal land. However, if the administration of land remainsunder the control of traditional leaders and their appointed councilors theimprovement will be marginal. The committees should be fully democratized.Nevertheless, South Africa is on the whole moving in the right direction withregard to land reform.page 18 of 28
[FNa1]. Vice-President, Supreme Court of Rwanda, formerly Associate Professorof Law, University of the Western Cape, Cape Town, South Africa. LLB (honors),Makerere University, Uganda; LLM, Yale Law School, USA; and, D. Phil., Oxford,England.[FN1]. J. LEWIN, The Native in South Africa, Witwatersrand University Press,Johannesburg. Quoted in LETSOALO "Land 'Reforms' -- State initiatives" inMichael DE KLERK, ed: A Harvest of Discontent: The Land Question in SouthAfrica, 1944. 99-111 at 100.[FN2]. THOM, H.B., ed., Journal of Jan van Riebeeck, entry of 10 Feb 1655quoted in T.R.H. DAVENPORT and K.S. HUNT, The Right to the Land Document No.17. David Philip, Cape Town, 1974.[FN3]. DAVENPORT and HUNT ibid. Documents 20 and 21. Documents 34, 35 36 and37 show how the Kings of the Zulu, Shaka and Dingane supposedly gave grants orceded much of the east coast -- estimated at 20, 000 square miles (Port Nataland its hinterland including mineral rights) to four different people- F.G.Farewell, John Saunders King, Captain Allen Gardiner and Piet Retief atdifferent times between 1824 and 1838 for nothing more than "as a reward forhis kind attention to me in my illness" or "for his attention to my mother inher last illness."[FN4]. Native Land Act 36 of 19 June 1913.[FN5]. Native Development and Trust Land Act 1936.[FN6]. As Bundy puts it: "What the 1913 Act attempted to do was to legislateout of existence the more independent forms of tenure and to perpetuateinstead the most dependent. Its intention was to outlaw cash paying tenants,and in the Orange Free State to forbid sharecropping agreements. The Act wasintended to reduce cash-paying tenants and sharecroppers to the status oflabor-tenants or wage-laborers." C. BUNDY, "Land, Law and Power: ForcedRemovals in Historical Context," in C. MURRAY, and C. O'REGAN, No Place toRest: Forced Removals and the Law in South Africa, Cape Town, OxfordUniversity Press, 1990, 1-12 at 6.[FN7]. Group Areas Act No. 41 of 1950; replaced by the Group Areas Act No. 36of 1966.page 19 of 28
Page 1 and 2: Land Reform in South Africa: An Ove
Page 3 and 4: alleviate poverty, especially in th
Page 5 and 6: in the Western Cape (Cape Town), ru
Page 7 and 8: settled with monetary compensation
Page 9: in 1998 [FN51] to broaden its scope
Page 12 and 13: Although commonage accounts for 31%
Page 14 and 15: former homelands, pending the intro
Page 16 and 17: either the private landowner or the
Page 20 and 21: [FN8]. For a detailed account of th
Page 22 and 23: [FN29]. Restitution of Land Rights
Page 24 and 25: [FN49]. See for instance: Soobramon
Page 26 and 27: [FN73]. Ibid. Box 4.4.[FN74]. Infor
Page 28: [FN95]. For a summary of these crit

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