Land ownership in indigenous African communities
The Xolobeni case recently in the news highlights tenure insecurity in rural South Africa, where government and a local chief granted mining rights against the community’s wishes. Indigenous persons recognise that land has cultural and spiritual meaning. These are mostly individuals who stay in rural South Africa. In the journal article titled “customary (communal) land tenure in South Africa: did Tangoane overlook or avoid the core issue” author Mailula, D states that to indigenous Africans, “land is not simply regarded as an economic or environmental asset, but also as a cultural and ontological resource, and spirituality of the society”. From the above developed the cultural belief that land ownership can be held through a household, chiefdom, community or even a combination of groups, whether it be the living or dead, be it the ancestors or the unborn. Thus, landholding and security of tenure are not held through individual rights but community rights which creates a complex system of land ownership. Ownership in communal areas is held collectively or communally.
Constitutional obligation to restore previously insecure tenure in rural communities
The Constitution places an obligation that customary law is binding in the Republic and courts must apply it if and when it is applicable subject to the Constitution and any other law dealing with it. Whenever a personal claim arises to the land, the Court will have to look at social entities like the lineage, village, chieftaincy and ethnic sections or network in resolving the issue.
The above is a complicated system that poses as a challenge to modern legal reform. Parliament was faced with the challenge of having to protect the de facto existing rights immediately and to restructure communal tenure to meet the constitutional imperatives. To remedy the above parliament passed the Interim Protection of Informal Land Rights Act (hereinafter referred to as “the Act”) to protect the existing de facto land rights. The preamble to the Act states that its purpose is “to provide for the temporary protection of certain rights to and the interest in land which are not otherwise adequately protected[…]”. This means that the legislation was to be for temporal application; thus the government, due to the inefficiency of passing legislation to protect tenure rights predominantly in the rural area, has had to extend the application of the Act each year. The Act states that an informal right includes the right to use or occupy, or access land in terms of any indigenous law or practise of a tribe or in terms of any custom, usage or administrative practise in a particular area. The above section guarantees the rights of occupation for all persons living in communal areas. In addition, deprivation of land in such communities can only happen if one consents or it may be deprived in accordance with the custom of that community.
Legislative means to attain permanent secure tenure in rural South Africa
Government has tried to promulgate the Communal Land Rights Act to regulate communal land tenure permanently; however, the abovementioned legislation was found to be invalid and was struck down in its entirety in Tongoane v National Minister for Agriculture and Land Affairs due to incorrect procedure followed in the consultation with the public secondly that the Act does not provide sufficient security of tenure for individuals staying in former bantustans. Persons in the rural area still do not have legislation that will regulate tenure security. The Draft Communal Land Rights Bill is yet to be passed into law. The bill provides greater security of tenure by providing the transfer of communal land rights to communities that own the land, furthermore by providing for the mechanism of registration of such land and to establish forums that will regulate the functioning and the handling of such property.
Communities like eXolobeni will continue to face insecure tenure as proper permanent legislation to regulate tenure security is yet to be promulgated. This puts such citizens at a precarious position, hindering their rights that are linked to tenure such economic activity, right to family and freedom to enjoy their culture.
Guest Author: Ndiboho Thenjekwayo (Legal Intern at SchoemanLaw Inc – September 2020)