Title (Ch 5): Characterising ‘communal’ tenure: nested systems and

flexible boundaries

By Ben Cousins

In: Aninka Claassens and Ben Cousins (eds), 2008. Land, Power and Custom:
Controversies generated by South Africa’s Communal Land Rights Act. Cape Town:
UCT Press and Athens: Ohio University Press (109-137).

INTRODUCTION

The stated objectives of the Communal Land Rights Act 11 of 2004 are to provide
security of tenure for the occupiers of communal land and to create a democratic
land administration regime. Communal land is defined in chapter 1 of the Act as land
‘occupied or used by members of a community subject to the rules or custom of that
community’, and community is defined as ‘a group of persons whose rights to land
are derived from shared rules determining access to land held in common by such
group’. Security of tenure is to be achieved through the transfer of ownership of such
land from the state to communities and the confirmation or conversion of ‘old order
rights’ to ‘new order rights’, which can be registered.

Are these measures likely to promote tenure security for people living on ‘communal’
land in South Africa? A key factor to consider is the manner in which these measures
engage with the complex realities of ‘actually existing’ land tenure regimes. The
African experience of tenure reform in the post-independence era has largely been
one of ineffective law and policy. Interventions have, at best, failed to bridge the gap
between de facto and de jure realities (Toulmin & Quan, 2000). Inadequate funding
and state capacity have contributed to these failures, but so has a persistent lack of
understanding by policy-makers and legislators of the character of existing systems
of land rights (Okoth–Ogendo, 2002).

This chapter explores the nature of land rights within ‘communal’ systems in
contemporary South Africa. It also identifies some key commonalities and distinctive
features, while noting a number of important variations across different settings. A
long history of state interventions means that it is necessary to take into account the
impacts of past policies. These are particularly marked in relation to the powers of
traditional authorities, but also with regard to women’s land rights. A high degree of
variability means that there is no one system of ‘communal’ or ‘customary’ tenure in
contemporary South Africa. However, significant commonalities across contexts

1
reveal this form of property rights to be clearly distinct from that of individual, private
property.

It is inherently difficult to characterise non-Western land tenure systems.

Terminologies are contentious due to the historically specific character of legal
concepts derived from European systems of law and that may not be appropriate in
these non-Western contexts . This was recognised by some colonial administrators
and in much early anthropological research, leading to controversies over concepts
and analytical frameworks (Bohannan, 1963; Gluckman, 1965). According to
Biebuyck (1963: 52),

‘[c]ommon general formulae like … ultimate or sovereign rights, rights of allocation or

of control, or rigid oppositions between ownership, possession, use and usufruct …
have often obscured the understanding of the scope and nature of rights and claims
relating to the land.’

‘Custom’ is often invoked in describing the nature of land rights in Africa and in
claiming legitimacy for them. In contemporary contexts marked by dynamic market
relations, the commercialisation of production, large-scale population migration,
growing social inequality and increasing institutional complexity, the term ‘customary’
with its connotations of an unchanging social and moral order is clearly problematic.
Yet it continues to be articulated in discourses and struggles over property. Can land
rights in contemporary South Africa still be described as ‘customary’ or ‘traditional’ in
character? Does the notion of ‘living custom’ or ‘living law’―understood as law that is
‘negotiated within ever-fluctuating social and political settings’ (Oomen, 2005:
203)―allow land rights and land administration to be seen as both ‘customary’ and
evolving over time? Given the centrality of a notion of ‘living custom’ in recent
Constitutional Court rulings, this is an important question, and is returned to later.

‘Communal’ and ‘customary’ are not coterminous. As Walker (2004: 5) notes, the terms
tend to be used interchangeably yet it is quite possible ‘to have communal tenure
systems that support poor people’s livelihood strategies, that are not based on
customary law, nor dependent on traditional institutions for their administration’.
Advocates of traditional systems as well as women’s rights activists at times elide these
meanings, but for analytical purposes they must be seen as distinct.

The chapter draws largely on ethnographic analyses and historical accounts from the
southern African region, but makes occasional reference to debates elsewhere in Africa

2
or further afield. Key issues discussed include the social and political embeddedness of
land rights, the relative balance of ‘individual’ and ‘communal’ features, women’s land
rights, common property resources, territorial and jurisdictional boundaries, nested
systems of administration, and the role of traditional authorities in relation to land.
Important controversies in the literature are identified and discussed, for example,
debates on the source of land rights and the nature of land allocation. The conceptual
framework for understanding property regimes suggested by Okoth–Ogendo (1989)
informs a characterisation of the key features of land rights in ‘communal’ systems.
Challenges to the approach to tenure reform adopted in the Communal Land Rights Act
are noted, but the potential impacts of the Act are not discussed in detail here.1

THE GENERAL CHARACTER OF ‘COMMUNAL’ LAND TENURE SYSTEMS IN

SOUTHERN AFRICA

Anthropologists undertaking field research in the early to mid-20th century attempted

to identify the general features of African land tenure in the pre-colonial era. Biebuyck
(1963: 52–64) provides a useful summary of their views: land was plentiful and
exploitation of resources was generally extensive; land was essential for livelihoods
but had little exchange value; land was ‘vested in groups’ (chiefdoms, villages,
lineages or other social groupings) represented by chiefs, elders and/or councils.
There was ‘a close relationship between features of social and political organisation
and principles of land tenure’. A mythical association between ancestors and land
was often present in belief systems.

All members of a group had rights of access to land, derived in the first instance from
membership of the group or ‘in some cases’2 from political allegiance of the subject to
the political authority of the group. Rights in land could also be obtained through
marriage, migration, friendship and formal transfer. The exercise of any right was
always limited by obligations and counterbalanced by the rights and privileges of
others. Individual security was great, provided that the necessary respect for the
ethical code of the group was maintained. Effective use and appropriation were
generally required for the maintenance of individual and family rights in a particular
piece of land. Often a number of social personalities exercised rights and claims in
the same piece of land. Land tenure was both ‘communal’ and ‘individual’ (Biebuyck,

1
See chapter by Claassens on power and authority and chapter byClaassens and Ngubane
in this book.
2
Emphasis added.

3
1963: 54–5), and can be seen as ‘a system of complementary interests held
simultaneously’ (Bennett, 2004: 381).

Conquest and colonial rule brought the imposition of new forms of authority and
economic organisation as well as the subordination of indigenous forms. African
reserves were created as a way of containing resistance to dispossession, and later
facilitated the supply of cheap labour to the emerging capitalist economy (Wolpe,
1972). The reserves also allowed for the creation of a system of indirect rule in which
traditional leaders undertook low-cost local administration on behalf of the colonial
state (Mamdani, 1996). According to Hendricks (1992), government-sponsored
communal tenure bore little resemblance to the pre-colonial system and was severely
distorted. State policy thus sought to retain a form of ‘communal’ land tenure
because this appeared to suit the interests of the dominant classes.

Regional variations in policies and their impacts occurred within this overall pattern.
In the Cape Colony in the 19th century, government attempted to replace customary
tenure with individual titles. The Glen Grey Act 25 of 1894 (C), for example, entitled
married men to only one arable plot, and only title-holders were allowed to graze
livestock on commonage land. Often, however, boundaries were not observed, the
distinction between arable and commonage land became blurred and people did not
register their inherited titles. The system tended to revert back to ‘communal’ tenure
(Delius et al, 1997). In Natal, by contrast, individualisation of land rights was not
pursued. The British Diplomatic Agent, Theophilus Shepstone, attempted to codify
custom and in so doing enshrined in law many of the despotic powers created for
Zulu chiefs during the reign of Shaka.

Later the Native Trust and Land Act 18 of 19363 established the South African Native
Trust4 in which would vest all Crown land set aside for ‘native occupation’. This
added another 6 per cent to the 7 per cent of land area of South Africa which had
been set aside for Africans. The Act allowed regulations to prescribe the conditions
on which residents could hire, purchase or occupy land held by the Trust and to
control soil erosion. Rights to transfer or bequeath land were limited, the size of
allotments was set, and women’s land rights were severely circumscribed. In terms of
Proclamation R188 of 1969, two forms of tenure were recognised―quitrent5 for
surveyed land and ‘Permission to Occupy’ (PTO) for unsurveyed land. For the latter,
3
Subsequently renamed and repealed. The Development Trust and Land Act was its last
valid name.
4
Later named the South African Development Trust (SADT).

4
chiefs and headmen were to undertake the task of allocation, agricultural officers to
survey the boundaries of sites and fields, and magistrates to issue PTO certificates.
Registers of permit-holders were to be kept at the magistrates’ offices. The manner
and degree to which these formal requirements were implemented varied across the
country (Macintosh et al, 1998).

In the colonial and apartheid eras, the retention of ‘communal’ land tenure was
intended to underpin cheap labour policies and cost-effective control of rural
populations from above. But the system also widened access to relatively
independent, land-based livelihoods. In addition, it helped rural communities to resist
exploitation and state control, and they often actively defended the system (Delius et
al, 1997; Beinart, 1982). The effect was to provide for elements of both continuity and
change in land tenure systems ― to varying degrees in different areas depending on
the outcomes of local political struggles and the degree to which state policies were
implemented (Cousins & Claassens, 2005). The legal status of such land rights
remained weak, given their ‘second class’ status, as evident in the difficulties faced
by people attempting to defend their rights against the state or powerful private
interests (Budlender & Latsky, 1991).

Contemporary South African case studies6 generally characterise land tenure in the
former reserves as being simultaneously ‘communal’ and ‘individual’ in character.
Secure rights to land and natural resources derive largely from recognised and
accepted membership of a local group or ‘community’. Membership flows from birth
in the first instance, but outsiders who apply for land can be accepted into the
community through defined procedures (for example, approval of an application and
payment of a khonza fee in KwaZulu–Natal)7 or through transactions such as
purchases of houses (or sometimes even land). Land rights, as in the pre-colonial
era, are closely inter-related with social and cultural relationships more generally and

5
Quitrent was originally a form of leasehold on state land, and was held by white settlers in
the early colonial period. It was extended to blacks in parts of the Eastern Cape and Natal in
the 19th century, but in a highly restricted form (eg land was inalienable and could not be
mortgaged).
6
For KwaZulu–Natal see Alcock & Hornby (2004), Cross (1994), Ferguson & Sithole (2004),
Hornby (2000), Liversage (1993), Sithole (2004), Walker (1997). For Eastern Cape see De
Wet (1995),, Fay (2005), Kingwill (1996), Kepe (1999; 2001), McAllister (1986), Ntsebeza
(1999), Turner (1999). For Limpopo see Claassens (2001), Lahiff (2000), Lahiff & Aphane
(2000), Oomen (2000; 2005). For North West see Small & Winkler (1992). For Mpumalanga
see Levin & Mkhabela (1997), Small & Winkler (1992).
7
See Alcock & Hornby (2004: 13).

5
the identities associated with these. People often view land rights as underpinning
the continuity of social units as well as securing access to the basic conditions of
human existence. Tenure security derives in large part from locally legitimate land-
holding rather than the law.

In many of these case studies, however, relationships and values are shown to be
under stress as a result of social and political change. This gives rise to tension and
conflict over the precise definition of both collective identities and individual rights
(Claassens, 2001; Hornby, 2000; Oomen, 2005). Development planning often
precipitates conflict over land rights due to lack of legal clarity (Adams et al, 2000;
Kepe, 2001).

Cross (1992: 314–17) suggests that contemporary communal tenure systems in

South Africa refer back to an ‘indigenous social land ethic’. While varying according
to local context, the principles underlying this ethic ‘offer a basis for either common
property rights or different forms of individual property rights under community
supervision’ (Cross, 1992: 318). The most basic principle is that all families have a
claim on the community for land, that is, there should be universal access to land.
She explains the trend towards higher levels of individualisation in terms of adaptations,
rather than abandonment, of the land ethic. She suggests that private discretion in land
transfers is allowed more now than in the past; permanent individual rights have
become more accepted than before; and egalitarianism has begun to prevail over the
principle of settlement seniority. Rates of change are highly variable and are highest in
areas closest to towns and cities, but the land ethic often underpins de facto tenure
systems that emerge in informal settlements in urban areas (Cross, 1994: 181). Change
has been slowest in relation to the notion of a universal land right (Cross, 1992: 320).

Despite state intervention and control, land rights in contemporary systems of

‘communal’ tenure thus remain socially embedded, involving ‘complementary
interests held simultaneously’ (Bennett, 2004: 381) by members of groups. The
challenge for tenure reform legislation is to give appropriate legal recognition to the
nature of such rights.

WHERE DO LAND RIGHTS DERIVE FROM: AN ALLOCATION BY AUTHORITIES

OR AN ENTITLEMENT OF ‘CITIZENSHIP’?

The source of rights in land within pre-colonial African property systems remains
controversial. Although some writers concur with Biebuyck’s formulation that rights

6
were ‘vested’ in the group, others assert that these rights were vested in individuals,
arose from membership of society and were akin to a claim of citizenship. Gluckman
(1965: 78) asserts that the underlying principle of African land tenure (in common
with most ‘tribal societies’) is that rights to land

‘are an incident of political and social status. By virtue of membership in the nation or
tribe, every citizen is entitled to claim some land, whether it be from the king or chief,
or from such political unit as exists in the absence of chiefly authority.’

Colson (1971: 197) asserts that land rights could not be bought nor ceded ‘any more
than the citizenship upon which [they] rested’.

In contrast, some anthropologists have described land rights as deriving from

allocations by chiefs acting as ‘owners’ of land or in a trusteeship role. Reader (1966:
65), for example, describes Zulu land tenure rights as ‘usufructory’ and not ‘absolute’,
and stemming from ‘the tradition that the chief holds all tribal land in trust for those
who owe political allegiance to him’. In Swaziland, according to Kuper (1969: 44), ‘the
land and the people are interlocked, and the political bond between rulers and
subjects is based largely on the power that the rulers wield over the soil on which the
people live’. Kuper (1969: 45) says that ‘as representative of the nation, the king
allots land to his people’. It may be significant that both the Zulu and Swazi cases are
societies in which state power became highly centralised in the period immediately
before colonial subjugation.

The strong emphasis on chiefly allocation as the source of rights has been heavily
criticised by authors such as Cheater (1990), Chanock (1991) and Ranger (1993).
Chanock (1991: 64) suggests that

‘[t]here is a profound connection between the use of the chieftaincy as an institution

of colonial government and the development of the customary law of land tenure.
The development of the concept of a leading customary role for chiefs with regard to
the ownership and allocation of land was fundamental to the evolution of the
paradigm of customary tenure … the chiefs were seen as the holders of land with
rights of administration and allocation. Rights in land were seen as flowing
downward.’

In central and southern Africa, this ‘feudal’ model fitted well with British ways of
thinking about states and societies. It also linked British land law and colonial
contexts, and served the interests of regimes seeking to acquire land for settlers. In

7
addition, it suited the South African state to ‘ground the powers of chiefs in the right
to allocate customary land for use’ (Mamdani, 1996: 140, 144).

For Biebuyck (1963: 55), writing from an Africa-wide perspective, land allocation was
not necessarily undertaken by the representatives of the land-holding groups. The
primary role of chiefs and elders was often to maintain peace between the land-using
units, to defend the integrity of the territory or to ensure its fertility. Colson (1963)
describes the case of the Valley Tonga of present-day Zambia, where before 1900
people lived in neighbourhoods under a ritual leader known as a sikatonga. Individual
cultivators had rights over land they brought into cultivation and ‘no authority within
the community had the right to allocate land’ (ibid: 141). Men and women were
‘equally eligible’ to receive lineage land (ibid: 142).

The contemporary literature also contains contrasting characterisations of the source

of land rights and, in particular, of the meaning of the term ‘allocation’. Some authors
portray rights as deriving primarily from allocations by an authority structure (Oomen,
2005: 157–8; Ntsebeza, 1999: 75, 101; Ntsebeza, 2005: 219–20). Others see the
origin of rights in accepted membership of a ‘community’, and portray ‘allocation’ as
an essentially administrative procedure to ensure that land is distributed fairly and to
avoid boundary disputes (Alcock & Hornby, 2004: 13). Fay (2005: 189–90) describes
land allocation in Hobeni in the Eastern Cape as follows: applicants approach
neighbours in the area to seek their approval and then approach the sub-headman
who arranges an open meeting of residents to reach consensus on the acceptability
of the applicant and the site. Access to land through inheritance or sub-division of
existing plots does not involve consulting with the headman or sub-headman.

Small & Winkler (1992: 6) describe land allocation among the Bafarutse ba
Braklaagte as follows. Large areas of land are set aside for extended family groups
or clans (kgoros). Every family is entitled to residential plots, fields for ploughing and
access to communal grazing. The allocation is undertaken by an elder representing
the clan on the kgotla or council of elders. In these cases, it seems clear that the
entitlement to land precedes the actual process of allocation.

In other studies the issue of the source of land rights is not explicitly addressed and
the precise meaning of the term ‘allocation’ in this regard remains unclear. This
ambiguity is not resolved by Bennett (2004: 383–4), who discusses the powers that
traditional leaders have to decide where their subjects are to live and how much land
they are to be given, but also characterises this as a duty. Since the present day

8
reality is that most land has already been allocated, in most cases leaders now do no
more than ‘approve a transfer between existing landholders’. Bennett goes on to
describe the origin of land rights as an ‘entitlement to land [that] arises not from
affiliation to the nation but, rather, from attachment to one of its wards’. He describes
the decision to allot land (or approve a transfer) at the local level as ‘taken on the
advice of elders and the applicant’s future neighbours’. He characterises this as ‘an
administrative act’, subject to the principles of administrative law, because ‘an
applicant has no definite rights before an allotment is made’ (Bennett, 2004: 384). He
does not engage with arguments that the powers of traditional leaders to grant land
rights were over-emphasised during the colonial period.

The land allocation powers of traditional leadership and the nature of land rights are
central issues in the constitutional challenge to the Communal Land Rights Act. They
are returned to below.

SECURITY OF INDIVIDUAL RIGHTS TO LAND WITHIN ‘COMMUNAL’ SYSTEMS

The early anthropological literature emphasises the strength and security of

individual rights to residential and arable land within ‘communal tenure’ systems, but
also describes a variety of social obligations that constrain these rights. Schapera
(1955: 199) asserts that for the Tswana in the 1930s,

‘a homestead once built remains the exclusive property of the family occupying it; and
is handed down from one generation to another. … [w]ithout their permission, no-one
may occupy it; and they can return there at any time to live in it again.’

Male heads of families were granted arable land without restrictions on size or
number of fields, the family’s capacity to work the fields being the effective check
(Schapera, 1955: 202). The land of the male head was inherited by his heirs. He also
had the right, subject to approval of his headman, to give away part of it to a relative
or friend, or to lend it to someone else. But he could never sell it, hire it out or
dispose of it in any other way in return for money (Schapera, 1955: 205).

Hunter (1979) describes rights to land in Pondoland in the 1930s. She states that
there had been comparatively little change in the land tenure system since contact
with Europeans because no serious shortage of land had yet occurred, and ‘all who
wish it can obtain land to cultivate’ (Hunter, 1979: 117). She also asserts that the
Pondo ‘are very much averse to the introduction of individual tenure which holds in a

9
number of districts of the Transkei and Ciskei’. Nevertheless, in relation to arable
land ‘the Pondo approach more nearly the European conception of ownership’
(Hunter, 1979: 113).

In general, the older anthropological literature emphasises the security of individual

rights against arbitrary decisions by socio-political authorities acting as land
administrators.

The imposition of colonial rule saw many changes in land tenure (Biebuyck, 1963:
56). These involved a growing scarcity of land due to: increased population,
agricultural development, the development of new markets and the demand for good
quality land; new ideologies of inheritance and economic co-operation; new
legislation and interventions by the courts; and large-scale resettlement of people.
Sales of land became widespread in some areas but elsewhere remained repugnant.
In some places rights became highly individualised; in others they remained under
the control of groups. According to Sansom (1974: 168–9), the general trend in
southern Africa was towards ‘adaptation’ of customary tenure to meet the new
conditions of land shortage. He cites Gluckman’s (1961) views that the basic
principle that every male member of the tribe had a right to land to support his family
was generally upheld by chiefs, who were then forced by scarcity to progressively
commandeer and re-allocate first unused land, then fallowed land, and then to
restrict each family to a defined area of garden land. Sansom (1974: 169) also cites
evidence of bribery of chiefs in relation to land.

Under apartheid, the security of individual rights within ‘communal’ systems was
weakened in several ways. Bureaucratic controls imposed through the PTO system
included a one-man-one-lot requirement, restrictions on plot size, a rigid system of
male primogeniture to govern inheritance, and non-recognition of women’s land
rights. Officials were given extensive powers to appropriate land and to cancel
quitrent titles and PTOs. As Delius et al (1997: 38) comment, ‘access to land
depended upon the whims of white officials and strict observation of a host of
regulations’, and there was ‘a reduction in the scope for flexibility and diversity in land
holdings which had characterized “customary” systems’. Resentment of state
intervention in land tenure helped provoke major rural revolts in Sekhukhuneland and
Pondoland (Chaskalson, 1987).

10
In contemporary case studies, rights to residential and arable plots are usually
portrayed as being held by households with married men at their head (Alcock &
Hornby, 2004; Cross & Friedman, 1997; Turner, 1999). In some communities, single
women with children to support are also allocated land (Fay, 2005; Meer, 1997;
Sithole, 2004; Thorp, 1997). The principle that families need land to establish an
independent base for their livelihoods is still widely upheld. Once land has been
allocated these rights are secure; the holders cannot be deprived of them unless they
permanently leave the community, or someone commits a major crime such as
murder or engages in witchcraft.

The pre-1994 system of issuing PTO certificates is still in place in some areas and
provinces but not in others. Whether or not officials still survey and demarcate plots,
as they used to do in the apartheid period, is also highly variable (Macintosh et al,
1998). In many places registers are not being maintained. The effective breakdown
of land administration can lead to tensions and disputes over land rights (Lahiff &
Aphane, 2000; Turner, 1999; Macintosh et al, 1998).

High population densities in communal areas have led to a widespread shortage of

arable land, and often only residential land is now allocated (Turner, 1999). In many
areas, grazing land is being given over to residential plots or fields. The economics of
dryland cropping under current conditions means that large areas of arable land are
not fully used (Andrew et al, 2003). The principle that land not in use can be
reallocated to community members in need is rarely invoked; in these cases non-use
of fields for periods of five to ten years or even longer must be demonstrated (Alcock
& Hornby, 2004: 17; Kepe;8 Turner, 1999: 16). In many areas a certain amount of
sharecropping or lending of arable land takes place, but this is often constrained by a
lack of formal oversight of such arrangements and consequent insecurity (Fay, 2005:
199). Land is also sometimes allocated to small groups, usually of women, for
income-generating projects such as gardens, poultry enterprises, brick-making or
bakeries, but the security of these rights is sometimes in question (Claassens, 2001).

The underlying principle that communal land cannot be bought or sold is still strongly
articulated by residents in many communal areas (Alcock & Hornby, 2004: 17).
However, in some places, such as Pondoland, it is evident that sales to outsiders do
take place (Kepe).9 Sale of buildings or other permanent improvements such as fruit
trees is usually seen as acceptable, but allocation of the land itself must then follow a
8
Personal communication, 2004
9
Personal communication 2004

11
procedure similar to that followed when outsiders apply for land (Turner, 1999: 13).
However, in many places it appears that there is a high incidence of chiefs and
headmen selling land to outsiders without such procedures being applied (Ntsebeza,
1999: 74–5; Oomen, 2005: 158, 173).10

In Ekuthuleni, a former mission station farm in KwaZulu–Natal, landholders have the

right to allocate, lend and bequeath their land, and to sell top structures such as
houses. Allocations, however, are always made to relatives who need land (including
single mothers, widows and elderly women) and in practice neither allocations nor
sales to outsiders currently take place (Hornby, 2000). It is the responsibility of the
local headman or nduna to allocate vacant land in consultation with an ibandla (group
of neighbours). There is lack of agreement, and at times contestation, over some
aspects of the tenure system (for example, whether or not loans are permanent, and
whether or not payment to the nduna is legitimate), over precisely what a land
allocation means, and over how some disputes can be resolved. This has led to
anxiety over tenure security, deriving from ‘unclear adaptations of rules and
procedures’, themselves an indication of ‘processes of change in response to internal
and external pressures’ (Ziqubu at al, 2001: 6).

Contemporary case studies suggest that many occupants of communal land enjoy de
facto tenure security. This is because existing systems, many of them now informal in
character, work reasonably well on a day-to-day basis. But these systems are under
severe strain as a result of in-migration, overcrowding, informal individualisation,
breakdowns in administrative systems, abuses by some traditional leaders, the
continued insecurity of many women, and lack of clarity over the role of traditional
authorities and local government bodies (Peires, 2000). As a result, many people
experience problems, anxieties and tensions in relation to the security of their land
rights. Tenure reform must address the breakdown in the formal land administration
system and create greater certainty over the legal status of land rights―but at the same
time allow the many local variations in the definition of rights and duties to be
recognised in law.

INSECURITY OF LAND RIGHTS DUE TO FORCED REMOVALS

The previous section illustrates the variable manner in which ‘individual’ and
‘communal’ aspects of land rights can articulate with each other without any
10
See chapters 10 to 12? in this book on Kalkfontein, Makuleke and Makgobistad.]

12
necessary threat to tenure security. There are other cases, however, where individual
rights are not secure within group systems, as a result of South Africa’s history of
state intervention, regulation and repression. Forced removals and dispossession of
the land of black South Africans were undertaken by previous regimes for a variety of
purposes. Most of the victims found themselves living in ‘homelands’, and were
placed under the jurisdiction of traditional authorities approved of by the state as well
as under SADT-administered ‘trust tenure’ and betterment regulations.11 These
massive displacements altered the social composition of rural communities and
affected the security of individual land rights in a variety of ways.

Communities who purchased farms in ‘white’ areas in the late 19th or early 20th
century lived in areas known as ‘black spots’ and were targeted for removals. Some
(for example, Daggakraal, Driefontein and Doornkop) accommodated the victims of
forced removals or evictions (Adams et al, 2000; Claassens, 1990; Small & Winkler,
1992). Often the original rights-holders and later arrivals stood together in
attempts―sometimes successful―to resist removals, but latent tensions over land
rights have emerged strongly since 1994. Forced overlapping of the land rights of the
original group, tenants and squatters means that in some situations the status of the
underlying land rights of the original purchasers cannot be ‘upgraded’ without other
people’s land rights being placed in jeopardy.

In some parts of the country the relocation of large numbers of people, attempts to
consolidate ‘homeland’ boundaries, and the placement of groups under tribal
jurisdictions led to the creation of patchworks of farms occupied by groups of diverse
origin and identity. Today, land in these areas is held under different versions of
‘communal tenure’. The underlying (registered) titles are sometimes held by different
‘owners’, and some farms are subject to competing restitution claims. Two detailed
case studies from Limpopo Province illustrate the complexities and tensions that can
result: Dikgale (Lahiff & Aphane, 2000) and Rakgwadi (Claassens, 2001; Small,
1997). In Rakgwadi the situation is marked by major contestations over land rights,
with many sub-groups under the jurisdiction of the tribal authority feeling under threat
from the authoritarian traditional leader who acts as though he is the ‘owner’ of land.
These cases illustrate a more general point: simplistic notions of homogenous
‘communities’, with clearly defined social and territorial boundaries and under the
accepted authority of traditional leaders, are inappropriate in many communal areas
in South Africa.

11
See chapter 8 by Peter Delius in this book.

13
In these situations the challenge to tenure reform is twofold, as recognised in the
White Paper on South African Land Policy of 1997 (DLA, 1997: 30–3). Firstly, it must
seek to secure the land rights of both original rights-holders and subsequent
occupiers, and ‘unpack’ the forced overlapping of rights that occurred in the past.
One way to do so is through making additional land and other resources available,
thus giving tenure reform a redistributive thrust. Secondly, it must address the legacy
of forced tribal jurisdictions and allow groups a choice as to which administrative
authority they fall under. Tenure reform would then incorporate a strong element of
democratisation (Cousins & Claassens, 2004).

WOMEN’S LAND RIGHTS

Although the early anthropological literature often uses the term ‘individual rights’ in
relation to residential and arable land, it also describes how such land was controlled
by families. These were often large, extended households comprised of descent
groups. Along with control came a host of social obligations to members of these
groups. This was true not only of land but also of other forms of property such as
livestock. Production was family-based, with a clear but flexible division of labour,
and its organisation through property rights and rules was complex and variable.
Exchange of property between families (for example, through bridewealth payments)
linked families and descent groups, and made for additional complexity. Women’s
rights to land were embedded in a social context of family rights and obligations
(Sansom, 1974: 159–62).

Hunter’s (1979: 121) description of property rights among the amaPondo of the
Eastern Cape is echoed in much of this literature: ‘ownership entails duties, and with
property are inherited obligations’ such as consulting spouses and children about its
disposal and ‘administering it for the benefit of dependents’ (Hunter: 1979: 121–2).
Cultivation was primarily the responsibility of women. In pre-colonial Pondoland a
married woman selected her own fields for cultivation provided she did not encroach
on someone else’s fields; they were not allotted to her. Once she turned over the soil,
she had an exclusive right to cultivate that field, no matter how long she left it in
fallow. There was no limit to the number or size of the fields she could cultivate.
Fields reverted to common pasture once the crop had been reaped, but the right to
cultivate the fields was maintained as long as the family using them lived in the

14
district. When a woman died, exclusive rights to her fields were inherited by her
youngest son (Hunter, 1979: 119).

Preston–Whyte (1974: 179–82) describes a common feature among the polygynous

peoples of southern Africa: the division of a homestead into ‘houses’ founded by
different wives, the first wife founding the ‘great house’ comprising herself and her
children, and subsequent wives being ranked accordingly. Each ‘house’ had its own
property in the form of dwellings, livestock, fields, a granary, utensils and so on.
These were generally inherited within that house (Preston–Whyte, 1974: 180). House
property could only be inherited by children born to that house. Bridewealth cattle
from the marriage of a daughter belonged to the house of her mother, and enabled a
son of that house to marry.

The colonial and apartheid periods saw a sharp decline in the tenure security of
women as PTOs and quitrent titles were issued only to men. This reflected a broader
shift in power relations between women and men. Walker (2002: 11) argues that

‘in southern Africa, the interpretation of “customary” law by colonial administrators

and magistrates served to strengthen, not weaken, patriarchal controls over women
and to freeze a level of subordination to male kin (father, husband, brother-in-law,
son) that was unknown in pre-colonial societies … this project involved not simply
the imposition of eurocentric views and prejudices on the part of colonisers, but also
the collusion of male patriarchs within African society, who were anxious to shore up
their diminishing control over female reproductive and productive power.’

The legacy of colonial and apartheid policies is that women are generally
disadvantaged in access to resources, but also in the control they exercise over them
(Meer, 1997b: 1). The contemporary literature reveals that in many cases unmarried
women with children to support can be allocated land, but only through their fathers
or other male relatives (Alcock & Hornby, 2004; Cross & Friedman, 1997; Sithole,
2004). Widows generally retain rights of access to the land of their deceased
husbands until one of their sons or grandsons inherits it. However, even before then
widows can be vulnerable to eviction. On the breakdown of a marriage, women can
also be evicted and in many places are then supposed to return to their original
families where they may or may not be allocated land. However, here too they can be
vulnerable and their claims may not be recognised by male relatives such as brothers
(Claassens, 2005).12 In addition, land administration bodies such as tribal authorities

12
See chapter 2 by Claassens & Ngubane in this book.

15
are dominated by men and often engage in discriminatory practices such as refusing
women permission to speak at meetings (Meer, 1997).13

Awareness of post-1994 constitutional rights to gender equality has led to recognition

in some communities that widows as well as unmarried women and divorcees with
children to support are entitled to be allocated land in their own right (Alcock &
Hornby, 2004; Sithole, 2004; Turner, 1999). However, the extent of these new
practices appears to be uneven (Claassens & Ngubane, 2003. In parts of the Eastern
Cape they apply only to residential land (Turner, 1999). In Limpopo province it has
been reported that women are particularly vulnerable to accusations of witchcraft,
which constitutes grounds for loss of land rights (Lahiff & Aphane, 2000: 26).
Because of all these problems, some women in communal areas are in favour of
individual title as a way to secure independent land rights (Claassens, 2003).

It is important to recognise that women are not a homogeneous category: they hold a
range of other social identities and interests (such as wives or relatives of traditional
leaders, in relation to class status, marital status, political affiliation and so on).
Women with elite identities―as members of ‘royal’ families, for example―have often
managed to access land more successfully than commoner women (Walker, 2002).

The context is one in which women constitute a majority of the population in the
areas under ‘communal tenure’ and are the main occupiers and users of land.14
Given high levels of unemployment and poverty, access to arable land for food
production and access to common property resources for a range of livelihood
contributions are important for women in particular (Shackleton et al, 2000). Around
40 percent of women in rural households are neither the household head nor a
spouse of the household head,15 and they access land and resources through family
membership. Marriage appears to be in decline among African women, and single
women with children are increasingly applying for allocations of land. HIV/Aids is also
impacting on the security of women’s land rights (as well as that of orphans and
youth), mainly through the lack of strong and clear inheritance rights (Drimie, 2003).
There is thus a strong case to be made for tenure reforms that greatly strengthen
women’s rights.

13
Ibid.
14
Ibid and the affidavit by Debbie Budlender on the CD Rom accompanying this book.
15
See the Budlender affidavit.

16
The challenge to tenure reform legislation is to transform existing definitions of the
rights of women to land in accordance with the constitutional principle of gender
equality since these definitions are inherently discriminatory and cannot simply be
recognised and confirmed. What does require recognition and confirmation is the
existing occupation and use of ‘communal’ land by women, many of whom are not
spouses. Transformation of decision-making on land within local land administration
bodies and dispute resolution contexts is also required in order to open up space for
the active participation of women on an equal basis to men.

COMMON PROPERTY RESOURCES

A key feature of pre-colonial tenure systems described in the anthropological

literature is the right of access to common property resources such as grazing, water
and a variety of other natural resources (such as trees for building, fences and fuel
wood; grass for thatching; wild fruits and vegetables; medicinal plants; wildlife; clay
and sand). Regulation of resource use in the common interest occurred to a greater
or lesser extent, and was particularly evident in relation to grazing.

Sansom (1974) argues that ecological contrasts between the wetter east of the sub-
continent and the drier west led to key differences in settlement patterns, land tenure
systems and the institutional arrangements for regulation of resource use, including
the demarcation of boundaries. What he terms ‘Type A’ systems were found in the
east where rainfall was higher, all the resources required for household production
were available in a highly localised area, and settlement was dispersed. Land
administration was highly decentralised and headmen played a central role. In the
drier and less climatically reliable zones of the central and western parts of the
region, resources were exploited over a much larger territory and settlement tended
to be more concentrated (‘Type B’). Land administration tended to be ‘centralized in
the person of the chief’ (Sansom, 1974: 140), but this refers to regulation of common
property resources, not to allocation of residential and arable land, which was
decentralised in both ecological zones.

Rights of access to common property resources were an important component of

‘communal’ tenure regimes throughout the colonial and apartheid periods. Even
where attempts were made to impose individualised forms of land rights, such as
quitrent areas in the Eastern Cape, shared commonage areas remained vital for
grazing and other uses (Kingwill, 1996). The same was true for farms purchased in

17
the late 19th or early 20th centuries by groups of Africans seeking to secure their land
rights against settlers and the state (Small & Winkler, 1992).

Contemporary studies reveal that rights of access to common property resources are
still important for rural livelihoods in many areas (Shackleton et al, 2000; Andrew et
al, 2003). Rights to land usually include rights to use or collect natural resources from
the commons. In some cases, rights and duties are subject to well-defined
community rules and management regimes, enforced by local authorities such as
traditional leaders or elected committees (Cousins, 1996; McAllister, 1986). In others
these management regimes have broken down and ‘open access’ prevails (Ainslie,
1999). In some cases, use of these resources by community members is not
restricted in any way, but outsiders are expected to request permission (or
sometimes to pay) for a right to use them (Kepe, 2001).

A major problem in many rural areas is the unauthorised exploitation of common

property resources by outsiders, in particular by entrepreneurs able to transport large
quantities of fuel wood, thatching grass or medicinal plants to distant markets (Kepe,
1997; Shackleton et al, 2000). Lack of clarity on land and resource rights sometimes
means that local community members are unable to assert their claims to such
resources or leads to tensions between local groups (Kepe, 2001; Turner, 1999).

The area within which community members may use or collect common property
resources is usually variable by the resource in question. For example, often grazing
is restricted to the boundaries of a village, or of a group of villages under a headman
(sometimes called ‘wards’ or ‘administrative areas’ or, in KwaZulu–Natal, isigodi).
Primary rights to use resources such as forest patches or woodlots may be held by
specific villages or wards, or may be held by members of the wider ‘community’ (for
example, the ‘tribe’). In most cases these boundaries are flexible and negotiable
rather than being exclusive (Alcock & Hornby, 2004). They can also be the focus of
conflicts (Cousins, 1996; Turner, 1999). Kepe16 describes common property resource
use in the Mkambati area of Pondoland as taking place within ‘administrative areas’
under the jurisdiction of headmen. Use of resources across these boundaries can
and does occur, but should take place only after seeking the permission of residents
and the endorsement of the headman. In practice, most resource use takes place
within villages, which are somewhat smaller than administrative areas. Boundaries at
these different scales are flexible and porous, but when prior permission to cross a
boundary has not been sought such access can give rise to tensions.
16
Personal communication,2004.

18
Boundaries of common property resource use are a critical issue when attempting to
define ‘community’ (Kepe, 1999), and the variability of boundaries depending on the
resource in question contributes to the complexity of the issue. It underlies many of
the tensions that have arisen in recent years over contested definitions of
‘community’ in restitution claims to land in nature reserves (Kepe, 2001; Palmer et al,
2002; Wynberg & Kepe, 1999). The challenge to tenure reform policy is to provide
workable definitions of social and resource use boundaries that take account of their
flexibility and negotiability. These features reflect both ecological realities and the
nested character of land administration.

NESTED SYSTEMS OF LAND ADMINISTRATION

Many studies describe pre-colonial land administration functions―along with other

aspects of authority (judicial, military, religious)―being undertaken at different levels
of authority, nested or layered within one another. Schapera (1955: 89), for example,
describes the Tswana system as ‘one of ever-widening jurisdiction extending
upwards from the household’. Although regulation of common property resources
took place at higher levels, the acquisition of rights to residential and arable land was
highly decentralised. In the first instance, a man would ask his father for a residential
plot or fields to plough. If this was not available he might try to acquire some land
from a relative or friend. If that did not succeed he would apply to the headman for
some ward land held in reserve. Only if none was available would the headman take
the applicant to the chief for an allocation (Schapera, 1955: 204).

In Pondoland, according to Hunter (1979: 378–82), land administration was largely

decentralised to the level of groups of homesteads (imizi) and the ‘petty headman’.
Minor disputes were dealt with at local level but could move upwards if not resolved;
major disputes were heard in the courts of district chiefs or that of the paramount
chief. Hunter (1979: 379) also describes the loosely knit nature of the ‘tribe’ as a unit,
which was ‘an affiliation of districts recognising one paramount’, and thus of varying
size and solidarity depending on the extent of outside dangers and the personality of
the paramount. Some district chiefs, for example, paid no dues to the paramount and
did not allow appeals to his court; others became independent by fighting or
sometimes even with the sanction of the paramount. Kuper (1997) stresses the
fluidity of social and political boundaries between ‘tribes’ and chieftaincies across the
region more broadly.

19
Sansom (1974: 145) reviews a large number of cases―Tswana, Sotho, Pedi, Zulu,
Mpondo, Lovedu, Venda―and suggests that ‘[a] similar apparatus for the delegation
of authority to administer rights in land is found in all Southern Bantu tribes’. He
follows Gluckman (1965) in describing the nested nature of land administration in
terms of a set of ‘estates’. The supreme independent political authority (for example,
a chief or paramount) controlled a primary estate of administration, the entire tribal
territory. This was divided into estates of lower orders (for example, sub-chiefs or
district heads) or secondary estates of administration. In some societies a third, or
tertiary estate, existed. Administrators did not (unlike feudal lords) own their estates,
but regulated access to resources and ‘protected individual and communal rights’
(Sansom 1974: 146) The hierarchy of estates corresponded with the devolution of
political authority and of judicial functions. At the lowest level were estates of
production where households used resources to support themselves.

The imposition of colonial rule and the development of the system of indirect rule
impacted on these nested systems and the balance of power within them. Beinart’s
(1982) study of Pondoland, for example, describes how a new system of
administration was established by the colonial state after annexation of the territory in
1894. This was designed to limit the independent power of chiefs. The area was
divided into districts, under the control of magistrates, and hut taxes were introduced.
Districts were divided into locations under government appointed headmen. Most
chiefs were designated as headmen, and their geographical jurisdiction was limited
to one location even if it had previously been much larger; commoners were also
elevated to chieftaincies. These appointments and boundary delimitations generated
major disputes, and became part of a struggle between the colonial state and the
paramount for the support of headmen. This allowed headmen to build a local power
base for themselves, and undermined the system of paying ‘customary dues’ to
chiefs. The first decades of the 20th century thus saw an ongoing struggle between
the state, the paramountcy and headman over political control (Beinart, 1982: 112–
22).

In terms of the Native Administration Act 38 of 1927,17 Africans were to be governed

in a distinct domain legitimated by ‘custom’ and chiefly rule, but under strict control
from above. The governor general―as ‘supreme chief of all natives in the provinces
of Natal, Transvaal and the Orange Free State’―could recognise or appoint anyone
as a chief or headman, and define the boundaries of any tribe or location. The Bantu
17
Renamed the Black Administration Act.

20
Authorities Act 68 of 195118 involved the establishment of tribal authorities that were
often highly authoritarian, ‘stripped of many of the elements of popular representation
and accountability which had existed within pre-colonial political systems and which
had to some extent survived within … the reserves’ (Delius et al, 1997: 39).

In the late 19th or early 20th century, various forms of communal tenure were found in
contexts where groups of people purchased farms as a way of securing their land
rights (Small & Winkler, 1992). In some communities, such as Daggakraal, arable
and residential land was divided into individual plots and registered, and land sales
could take place (for example, from owners to tenants). The social origins of the
original group were diverse, and there was no traditional authority at first. Later a
chief was installed to deal with administrative matters, but this system did not endure
and a committee was elected to manage the community’s affairs (Small & Winkler,
1992: 23). In Doornkop, before the forced removal, land was administered by an
elected committee and there was no hereditary traditional leader; someone on the
committee was nominated for this position ‘for the administrative purposes of dealing
with the authorities’, but he did not have any special powers (Small & Winkler, 1992:
20). Individual plots were allocated to married people if they were descendants of the
original buyers, and could be either sons or daughters. In Driefontein, KwaNgema
and Kalkfontein, land was also administered by elected committees rather than
chiefs. In these cases the groups purchasing land did not consider themselves to be
‘tribes’.19

Contemporary case studies show that land administration remains spatially and
institutionally nested. As described above, regulation of common property use occurs
at different levels of social and political organisation and is variable by the resource in
question. Despite attempts by colonial and apartheid regimes to centralise decision-
making in the hands of an ‘upwardly accountable’ traditional leadership, in most
areas the procedures for allocating residential and arable land to newcomers are still
enacted at the local level and involve prospective immediate neighbours as key
decision-makers, often under the oversight of either a traditional or an elected
leadership (Alcock & Hornby, 2004; Fay, 2005; Ntsebeza, 2005; Turner, 1999). The
relevant social and administrative unit is variously termed a neighbourhood (for
example, the isithebe in Pondoland), a sub-ward (umhlati in isiZulu-speaking areas),
a sub-village or a village. The traditional authorities overseeing these procedures and

18
Renamed the Black Authorities Act.
19
See the discussion on Kalkfontein by Aninka Claassens in chapter 11 of this book.

21
endorsing the allocation are variously a sub-headman (in Pondoland, unozithetyana),
a headman (nduna, isibonda, etc) or occasionally a chief (nkosi, kgosi, morena, etc).
In some places traditional leadership is no longer seen as legitimate, and elected
committees play these roles (Turner, 1999).20

Fay (2005) describes the situation in Hobeni in the Eastern Cape as one in which
land access is governed at the level of the neighbourhood, with variations in tenure
practices related to kinship composition. These neighbourhoods are nested within a
number of larger structures but primary decision-making rests with ‘those who inhabit
and use the land: neighbourhoods organised under neighbourhood members and
subheadmen’―and is characterised by ‘downward accountability and flexibility’ (Fay,
2005: 199).

Land allocation to an outsider often requires payment by the applicant of a fee of

some kind, seen as ‘chief’s dues’ in some places, or an indication of acceptance of
the authority of traditional structures (khonza in isiZulu-speaking areas), or simply as
an administrative fee (Alcock & Hornby, 2004; Kepe21). However, in many places
payments for land rights take place to chiefs or headmen without any oversight by
neighbours or the wider community (Ntsebeza, 1999; Oomen, 2005).22 Community
members often perceive this as corruption (Claassens, 2003).

Located between the smallest, more localised social and administrative units such as
the umhlati or isithebe and the outer boundary of the group as a whole (for example,
the tribal or tribal authority area) lies an intermediate level, a ward or an
administrative area under a headman (nduna, isibonda; dikgosana) or sometimes a
‘sub-chief’. This layer of authority plays a key role in dispute resolution and in co-
ordinating and regulating use of common property resources―for example, opening
up of fields for post-harvest grazing, or cutting of thatching grass (Alcock & Hornby,
2004; McAllister, 1986). Headmen may also play a number of other roles in tribal
administration, such as collecting tribal levies (Claassens, 2001).

In some cases, the highest level of the traditional hierarchy, the chief (nkosi, kgosi,
morena) ratifies the land allocations undertaken at lower levels and takes a share of
the administration or allegiance fee. These fees may be seen either as a personal
payment―although this is controversial and arouses fears of corruption (Alcock &
20
Ibid.
21
Personal communication, 2004
22
See also chapters 11, 12 and 13 on Kalkfontein, Makuleke and Makgobistad respectively.

22
Hornby, 2004), or have a public use (for example, to fund community projects or to
meet administrative costs). In some contexts, annual ‘tribal levies’ for a variety of
such purposes are still paid; in others this practice has been eroded (Claassens,
2001; Oomen, 2005).

Tenure reform laws and policies need to acknowledge and take into account the
nested and layered character of land administration in ‘communal’ systems. Focusing
on only one level, such as the chieftaincy, is likely to skew the relative balance of
power between different layers, create tensions and conflicts over jurisdictional
boundaries and resource use, and undermine the flexibility and downward
accountability of administrators to rights-holders. It could reduce the degree to which
rights-holders are involved in local decision-making on land, which, as this section
has shown, is integral to the nature of land rights in these systems.

SUPPORT FOR TRADITIONAL LEADERS’ ROLE IN LAND ADMINISTRATION

Most contemporary case studies provide evidence that the majority of people would
prefer traditional leaders to continue to play key roles in the operation of land tenure
systems. On the other hand, many studies also report widespread community
resentment of abuses of power by traditional authorities in relation to land
(Claassens, 2001; Ntsebeza, 1999; Turner, 1999; Zulu, 1996). Levin & Mkhabela
(1997) report that as a result of such abuse, most participants in community
workshops in Mpumalanga in 1996 as well a great majority of the authors’ survey
respondents rejected continued allocation of land by traditional leaders. Yet Levin &
Mkhabela (1997: 166) also refer to a ‘deep seated respect for the chieftaincy’ and ‘an
acceptance of the durability of the chieftaincy and its ceremonial functions’. This is
the case even in contexts where residents complained bitterly of corruption over land
allocation and tribal levies, and where as a result the powers of traditional leaders
were being directly challenged.

Oomen (2000) describes a community in Sekhukhuneland where dissatisfaction over

the lack of consultation by the king and the tribal authority on land matters was one
motivation for a local initiative to rewrite the ‘tribal constitution’. Nevertheless, 73 per
cent of people felt that the chief should allocate land compared to 14 per cent who
were in favour of a democratically elected body. Traditional authority was approved
of because it is ‘central to rural identity’, but also ‘tradition is far from fixed [and]
constantly redebated at the local level’ (Oomen, 2000: 91). Debates within ‘traditional

23
systems’ are evident in Alcock & Hornby’s (2004) study in KwaZulu–Natal. In one
community it was said that izinduna are no longer appointed by the inkosi: ‘since
there’s democracy, people have changed … and so now they want to elect izinduna’.
In another case, women can now be elected as izinduna. Discussions are also taking
place about land allocations to unmarried women and men, given social changes that
have resulted in the decline of marriage (Alcock & Hornby, 2004: 14).

An alternative explanation of continuing support for traditional leaders is that it is

underpinned by insecurity and fear of punitive action (Ntsebeza, 1999; Zulu, 1996) as
well as ‘the hegemony [the chieftaincy] exercises through the manipulation of
tradition’ (Levin & Mkhabela, 1997: 165). Claassens (2001) analyses the shifting
balance of power between ordinary residents and civics on the one hand, and
traditional authorities on the other, in one rural area between the 1960s and the
1990s. This case illustrates well the contingent character of the power wielded by
traditional authorities and the degree of popular support they enjoy, with the critical
variables being: (a) the degree of external support provided to traditional leadership
structures by the state; (b) the degree of control by such structures over land rights;
and (c) the relative ineffectiveness of new, post-1994 structures of democratic local
government. The latter is also emphasised by Ntsebeza (1999) and Oomen (2000;
2005).

The challenge to tenure reform policies is to underwrite increased security of land

rights with accountable structures for the administration of land. Downward
accountability will reduce the scope for corruption and abuse. The democratisation of
land administration, whatever institutional form this takes, is thus central to achieving
tenure security in practice. Case study evidence suggests that broader processes of
democratisation in post-apartheid South Africa are influencing local debates on land
rights and administration, and are prompting innovations.

THEORISING PATTERNS OF CONTINUITY AND CHANGE

This overview of the literature reveals how deeply African societies were affected by
the imposition of colonial rule in southern Africa and the incorporation of local
agrarian economies into wider political and economic relations. These interventions
resulted in a number of (sometimes contradictory) processes and adaptations:

(a) a greater stress on individual and family rights and decision-making in relation
to land;

24
 (b) a defensive stress on the group-based nature of land rights;
(c) the weakening of women’s land rights;
(d) chiefs and headmen becoming a symbol of resistance to colonial rule and
loss of land;
(e) chiefs and headmen being used by the state as instruments of indirect rule;
(f) the erosion of mechanisms that constrained the power of traditional leaders
and kept them responsive to rights-holders, ‘upward accountability’ to the
state creating opportunities for abuse and corruption; and
(g) the maintenance of elements of ‘downward accountability’ to rights-holders in
situations where land administration remained a local function.

Despite the range of adaptations and high degree of local variability revealed in the
literature, some of the key features of ‘communal’ tenure regimes have proved
remarkably robust over time. Early ethnographies, studies of historical change and
recent case material describe in particular the nested, shared and relative character
of land rights. These were acquired mostly through membership of social groups and
involved access to common property resources as well as flexibility of social and
territorial boundaries.

This pattern is consistent with Okoth–Ogendo’s (2002: 10) view that across Africa
more generally indigenous norms and structures demonstrated great resilience in the
face of colonial and post-colonial policies of ‘suppression or subversion’

The continuities reflect, in my view, what Jane Guyer refers to as the ‘persistent
elements and relationships by which people individually and collectively create
economies’ (Guyer, 2004: 6-7) . They may derive from what Kuper (1997: 74), with
reference to social and political structure more generally, identifies as ‘common
circumstances and shared traditions’ that ‘produced a series of similar structural
transformations, so that the various societies in the region can be analysed as
variations on common themes’.

What are these ‘persistent elements and relationships’ in relation to land tenure? One
is the direct and immediate embeddedness of land tenure in social relations. This is
found in many non-Western and pre-capitalist societies, where land rights have
tended to be inclusive rather than exclusive in character. Capitalist private property
emerged, according to theorists such as Polanyi (1944), through a process of
‘disembedding’ property from social relations (Hann, 1998). Whitehead & Tsikata

25
(2003) suggest that social embeddedness is central to understanding the gendered
character of access to land in Africa since men and women have ‘differentiated
positions within the kinship systems that are the primary organising order for land
access’ (Whitehead & Tsikata, 2003: 77).

Closely linked to social embeddedness is the central importance of power relations

and micro-political processes within land tenure regimes. Access to land via social
relations and identities usually involves an ongoing politics of land. Berry (1993)
argues that despite attempts by governments to clarify and regulate land rights, access
to land in rural Africa has continued to hinge on social identity and status, and is thus
subject to ‘a dynamic of litigation and struggle which both fosters investment in social
relations and helps to keep them fluid and negotiable’ (Berry, 1993: 133). In addition,
power relations are key because ‘struggles over property are as much about the
scope and constitution of authority as about access to resources’ (Lund, 2001: 11).
Land rights in Africa are thus also politically embedded.

Okoth–Ogendo (1989) provides a persuasive analysis of the nature of property rights

that probably applies more generally to non-Western property regimes rather than
being Africa-specific. The core of his argument is that a ‘right’ signifies a power that
society allocates to its members to execute a range of functions in respect of any
given subject matter; where that power amounts to exclusive control one can talk of
‘ownership’ of ‘private property’. However, it is not essential that power and
exclusivity of control coincide in this manner. Access to this power (that is, a ‘right’)
and its control are distinct, and there are diverse social and cultural rules and
vocabularies for defining access and control.23

Land rights tend to be attached to membership of some unit of production; are

specific to a resource management or production function or group of functions; and
are tied to and maintained through active participation in the processes of production
and reproduction at particular levels of social organisation. Control of such access is
always attached to ‘sovereignty’ (in its non-proprietary sense) and vested in the
political authority of society expressed at different levels of units of production.
Control occurs for the purposes of guaranteeing access to power over land for
production purposes (Okoth–Ogendo, 1989: 11).

23
See also Bennett’s (2004: 380) discussion of Allott’s analytical framework in which he
distinguishes between interests of ‘benefit’ and ‘control’.

26
In these tenure regimes there is no coincidence of access and control, and property
does not involve the vesting of the full complement of power over land that is
possible (that is, private property). In addition, variations in power (that is, rights)
derive from social relations, not the market. Rights over land are trans-generational.
Control is exercised through members of the units of production and is not simply the
product of political superordination. Different land uses attract varying degrees of
control at different levels of socio-political organisation.

Using Okoth–Ogendo’s conceptual framework, distinctive features of ‘communal’

tenure regimes in southern Africa can be identified:

 Land rights are embedded in a range of social relationships and units

including households, kinship networks and various levels of ‘community’; the
relevant social identities are multiple and overlapping and therefore nested or
layered in character (for example, individual rights within households,
households within kinship networks, kinship networks within local
communities and so on).
 Land rights are inclusive rather than exclusive in character, being shared and
relative. They include both strong individual and family rights to residential
and arable land as well as access to common property resources such as
grazing, forests and water.
 Rights are derived from accepted membership of a social unit and can be
acquired via birth, affiliation or allegiance to a group and its political authority
or transactions of various kinds (including gifts, loans and purchases). They
are somewhat similar to entitlements of citizenship in modern democracies.
 Access to land is distinct from control of land (through systems of authority
and administration).
 Control is concerned with guaranteeing access and enforcing rights,
regulating the use of common property resources, overseeing mechanisms
for redistributing access (for example, trans-generationally), and resolving
disputes over claims to land. It is located within nested systems of authority
with many functions at local or lower levels.
 Social, political and resource boundaries, while often relatively stable, are
also flexible and negotiable given the nested character of social identities,
rights and authority structures.

27
The flexibility and negotiability of land rights in such property systems means that
they are capable of dynamic adaptations to changing conditions, but also that they
are susceptible to ‘capture’ by powerful interest groups (as perhaps all property
regimes are to some degree). Both authority and rights are constructed in ways that
are ‘historical, contextual and contingent’ (Lund, 2001: 33).

Where these processes have not led to fundamental shifts in the way that rights to
land are held and exercised, many of the key features listed above can be observed.
Whether or not they are present, and to what degree, are empirical questions. Where
these features are present within ‘actually existing’ tenure regimes, law and policy
need to respond to them in appropriate ways. This is the key challenge for tenure
reform.

HOW ‘CUSTOMARY’ ARE CONTEMPORARY LAND TENURE SYSTEMS?

Bennett’s chapter in this book points out that the courts in South Africa have now
accepted that there is a distinction between ‘official’ and ‘living’ customary law. The
former is tainted by its origins in the colonial and apartheid eras. It is expressed in
laws such as the Native Administration Act of 1927 and in the ethnographies and
textbooks of researchers and legal scholars aligned with previous regimes. ‘Living’
customary law is acceptable because it is based on existing and accepted social
practices, and reflects the capacity of customary law to grow and develop; it is this
living version that is protected by the Constitution of the Republic of South Africa Act
108 of 1996 according to recent court judgments. Bennett also discusses the
problem of how to ascertain the content of ‘living custom’ given its dynamic and
variable quality.

For Oomen (2005), the term ‘customary’ remains problematic. She details the way in
which people in Sekhukhune draw on a variety of resources and institutions in
creating a local legal culture, including state law, official customary law and
traditional, constitutional and developmental values. She thus prefers the term ‘local
law’ and shows how this is ‘negotiated within ever-fluctuating social and political
settings’, is ‘crucially shaped within political relations’ and gives rise to a ‘legal culture
that is much more processual than the common law with its reliance on absolutes
and legal certainty’ (Oomen, 2005: 203). In this context, rights tend to have a
‘relational’ character in which shifting identities and variable status make all the
difference to what rights people enjoy in practice. ‘Custom’ falls within the repertoire

28
of norms, rules and values available to people, but is only one of the resources that
they deploy to defend or advance their interests.

A similar argument can be made in relation to land rights. The key features of
contemporary tenure systems identified in this chapter have the character of
underlying principles rather than ‘rules’, and there is a great deal of local variation
regarding how and to what degree these principles are given effect. They have much
in common with the norms and principles informing pre-colonial property regimes,
and could perhaps be described as informing the ‘living customary law of land’.
However, the literature reviewed here also describes cases where these features are
not explained or justified by local actors in terms of customary law, but rather in terms
of pragmatic concerns over secure and equitable access to a fundamental livelihood
resource (Hornby, 2000; Small & Winkler, 1992). The relevance and legitimacy of
these key features of African tenure systems can also be argued for in terms of
democracy, accountability and socio-economic rights―as did many of the community
groups making parliamentary submissions on the draft Communal Land Rights Bill in
2003 (Cousins & Claassens, 2004), and as do some of the applicants in the
constitutional challenge to the Communal Land Rights Act.

It is thus not necessary, and perhaps misleading, to use the term ‘customary’ to
describe the nature of ‘communal’ land rights. Given the manner in which official
customary law was used in the past by the state, traditional leaders and men to
advance and support elite and male interests, it may also be advantageous to avoid
the term altogether, as argued by feminist scholars such as Whitehead & Tsikata
(2003). It may be preferable to focus on the substantive issues of how to secure
existing rights of occupation and use in appropriate ways.

THE COMMUNAL LAND RIGHTS ACT AND ‘ACTUALLY EXISTING’ COMMUNAL

TENURE

How well does the approach to tenure reform adopted by the Communal Land Rights
Act fit with the key features identified here? The Act adopts a ‘transfer of title’
approach that accepts the private ownership paradigm of property rights. Ownership
of land will be transferred from the state to ‘communities’, and community members’
rights will be secured through the issuing of Deeds of Communal Land Right. There
is a poor fit, however, between the ownership paradigm, which involves the
coincidence of access and control within clearly defined and exclusive boundaries,

29
and a key feature of contemporary ‘communal’ tenure, the nested or layered
character of both the social units within which land rights are held and of land
administration institutions. As a result, major problems are likely to arise in attempts
to define the boundaries of the ‘communities’ who will receive title (Cousins, 2004).

A second potential problem arises from the land administration powers that the Act,
(in s 21 and 24), together with the Traditional Leadership and Governance
Framework Act 41 of 2003, provides to traditional councils. These councils generally
coincide with tribal authorities, which typically have large populations of between 8
000 and 20 000 residents. Transfer of ownership to these large ‘communities’ will
mean that land administration functions (including the allocation of land rights, and
the establishment and maintenance of registers and records of rights and
transactions) will be undertaken at the pinnacle of the traditional hierarchy. This gives
the chieftaincy ‘even more powers than it previously enjoyed’ (Malaudzi, 2004). Not
only does this fit poorly with the reality of nested systems and the fact that much land
administration occurs in practice at the local level, it also represents a decisive shift
of the ‘relative balance of power’ in favour of tribal authorities and chiefs. This is at
the expense of both individuals and families and of other levels of authority such as
headmen and sub-headmen. It thus weakens downward accountability (Fay, 2005)
and undermines the objective of democratising land administration. It also potentially
threatens the tenure security of smaller groups placed under the jurisdiction of tribal
authorities under apartheid.24

A third and related problem arises in relation to the tenure security of community
members. The Act attempts to create a balance between group ownership and
individual rights through the issue of registered Deeds of Communal Land Rights to
the holders of ‘old order rights’ and to those who are allocated ‘new order rights’.25 It
does not, however, describe or define the content or legal status of these new order
rights. On the one hand, it provides in s 18(3) and (4) for the content of these rights
to be defined in ‘community rules’; on the other, it allows the minister to determine
their ‘nature and extent’ as well the identity of rights-holders. Subsequent to a
determination by the minister, a land administration committee must allocate and
register new order land rights. This is at odds with the nature of land rights in these
systems in which rights-holders are intimately involved in local level decision-making

24
See chapters 11, 12 and 14 on Kalkfontein, Makuleke and Rakgwadi respectively. [
25
See the summary of the Act by Henk Smithin chapter 2 of this book.

30
on land. It thus threatens the security of existing rights of occupation and use―as
has already occurred in many situations where chiefs abuse their powers over land.

A fourth problem is in relation to the land rights of women. The Act deems new order
rights to be held jointly by all spouses in a marriage, and these must be registered in
all their names. The tenure rights of female household members who occupy and use
land but are not wives―such as mothers, and divorced or unmarried adult
sisters―are not addressed.26

Finally, the Act does not address the wide range of ‘communal tenure’ situations
found in contemporary South Africa. Instead it adopts a ‘one size fits all’ approach
that could result in disputes and uncertainty in situations where its assumptions do
not hold. For example, the Act does not address situations in which people do not
desire a transfer of title because of its perceived drawbacks, but do want greater
security of tenure than that provided by the Interim Protection of Informal Land Rights
Act 31 of 1996. It does not address adequately the legacy of a history of forced
removals which, along with ongoing social change, means that the composition of
many rural ‘communities’ is socially heterogeneous, that ‘tribal’ affiliations do not
always correspond with territorial boundaries, and that boundaries are often
contested.

CONCLUSION

This chapter has argued that some of the key features of ‘communal’ tenure regimes
have proved remarkably resilient over time, and can be present even where groups
no longer recognise traditional leaders, are socially and ethnically heterogeneous,
readily accept newcomers, and are keen to assert their democratic rights as citizens.
They are also dynamic and evolving regimes and not immune to innovations, such as
the granting of independent land rights to unmarried women. Is there a way, then, to
secure these distinctive forms of land rights without replicating problematic versions
of ‘custom’ imposed on communities in the past, and in a manner that promotes
democratic decision-making?

This question is taken up in more detail in the concluding chapter of this book. In
brief, one productive approach may be to vest land rights in individual members of
group systems rather than in the group or its institutions, and to make socially

26
See chapter 7 in this book by Claassens & Ngubane.

31
legitimate existing occupation and use, or de facto ‘rights’, the primary basis for legal
recognition. These claims may or may not be justified by reference to ‘custom’. This
approach would allow the victims of forced removals to claim rights based on long-
term occupation, and validate the claims of the descendants of group members who
collectively purchased land in the early 20th century. Rights-holders would be entitled
to collectively define the precise content of their rights, and choose, by majority vote,
the representatives who will administer their land rights (for example, by keeping
records, enforcing rules and mediating disputes). The primary accountability of these
representatives would be downwards to rights-holders, not upwards to the state.

Securing individual rights need not take the form of individual titling, but through a
statutory right that is legally secure yet also qualified by the rights of others within a
range of nested social units, from the family to user groups to villages and other
larger ‘communities’ with shared rights to a range of common property resources.
Women’s rights would need to be explicitly recognised at all levels. This focus on
‘socially embedded individual user rights’ is consistent with the nature of rights in
contemporary land tenure systems, which are ‘everywhere both “communal” and
“individual”’ (Biebuyck, 1963: 54).

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41