Feature Article: Traditional community land is private property

29 November 2012
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There is a great deal of confusion about traditional community land and its management. Politicians tend to be under the impression that because the government has been holding the land in trust for the members of the communities, they have a right to decide how the communities should deal with the land. This view is badly mistaken.

Remarkably, or dismayingly, the post-1994 governments have seen themselves as playing the same role as the colonial powers and apartheid governments who took away the property and rights to self-determination of the rural people. More than 18 years after the advent of democracy, we find that the ownership of the land has not been handed back to the people from whom it was taken. What is the motivation for continuing to deprive rural people of their ownership rights?

Traditional community land in KwaZulu-Natal is privately owned by the Ingonyama Trust, which holds the 2.7 million hectares of land (larger than Rwanda, Macedonia, or El Salvador) on behalf of all the traditional communities in the province. Placing the land in a single trust is an advance on the handling of community land in other provinces but individual communities would surely prefer to own and control the land themselves.    

Traditional authorities function on privately owned historically tribal land. For this reason, the constitutional requirements that relate to election to political office do not apply. Instead the traditional methods of appointing and recalling traditional council members should be accepted, including the right of the people to change the method of appointment and recall by traditional means. The right of recall by the community of any member who is in dereliction of duty or who conducts himself or herself in an unbecoming manner is an important element in the proper functioning of traditional leadership. This should remain a "family" or traditional community matter. Members of traditional communities then, too, have the right to stand as candidates in provincial and national elections and to vote in such elections.

Constitutional and legal rights

Traditional communities are collectively the legitimate custodians of the land, traditions, culture, languages and history of their respective peoples.  The nurturing of language, culture and traditions requires a place that can serve as a home for a people.  The sanctity of historically owned land and traditional leadership is vital for this purpose.

Traditionally owned land is not only of importance to rural people. It is also of importance to the majority of urban people who retain strong ties of kinship with their communities of origin.  If the traditions, culture and languages of the various peoples are allowed to develop with time, city dwellers will maintain weekend and holiday homes in their traditional areas to maintain and strengthen their kinship links.  The South African nation will be richer and stronger if it is built on a proud heritage that can obliterate for all time the memories of repression that arrived with colonialism and was perpetuated by apartheid.

Democracy and traditional authorities

Given that traditional community land is private property it should not be subject to ordinary political management.  Critics may argue that the size of the areas that fall within the jurisdiction of traditional authorities, demand that they should be subject to political management and that the administration of the territories should be subject to political voting rights. This is a misinterpretation of the property rights relating to these areas. This issue will become clearer when the ownership of all traditional community land is transferred from government as its temporary post-apartheid custodians to its rightful owners; the communities.

As owners, the communities have the right to manage their private land according to their own wishes as determined by African consensus decision-making processes. Imposing European-style elected local government on traditional communities is tantamount to once again imposing colonialism and apartheid-style dictates on the communities.  

In considering this issue, the inherently democratic nature of traditional African rule has to be taken into account. Traditional communities make consensus decisions on an issue by issue basis. Traditional leaders and their councils are fully accountable to the people and every member of the community has a right to voice a view on whatever matter is being considered. These leaders do not acquire dictatorial powers by reason of birth. Tradition determines an array of constraints upon the powers that they may exercise and also determines the manner in which issues affecting the community must be dealt with.  Councils are representative and incorporate all residents within the jurisdiction of their particular traditional community territory.

Traditional Community land and development

Management of traditional community land must start from recognition that the land is private property belonging to the various traditional communities. The traditional community properties must be dealt with on the same basis as sectional title properties, where communities can confer freehold title over the homes and gardens of residents, subject to specific rules relating to the use of such properties, and to the use of the communal areas, as formulated and agreed by the residents. Traditional authorities would, with the support of the members of their communities, carry out the same functions as the trustees of a sectional title body corporate.

If traditional community families receive freehold title to the homesteads and yards for which they now have usage rights but not title, the aggregate asset holdings of the community members will increase by a massive amount. What Peruvian economist Hernando de Soto describes as “dead capital” will be transformed into real wealth in the hands of the rural communities, increasing their ability to raise finance and develop their economies. 

Time to end the deprivation

Successive governments, from colonial, to apartheid, to the post-1994 elected governments, have incorrectly treated traditional community management as a political instead of as a private property management issue, which has caused unnecessary conflict.  Sectional title legislation can be adapted to accommodate traditional community land. Once the legislation is in place the transfer of property from government custody to the traditional communities can be carried out.   

Most traditional communities, in order to try and maintain cohesion within their communities, would probably limit sales of property to members of the same community. Limiting transfer rights to community members would limit the number of potential purchasers and result in lower property values but would confer far greater security and create greater community cohesion than currently exist.  Transfer or sale of land to external parties would be subject to community approval or rules. The value to the people of such limited rights would be significant as it would allow them to mortgage and sell their properties, something they are now precluded from doing.

Government should urgently change its approach to its interaction with traditional communities and their land. Full title to the land should be transferred to the individual traditional communities without delay. Traditional authorities, with the aid of global positioning system (GPS) technology, should establish registers documenting the co-ordinates of the homesteads and gardens of community members, in order to prepare for the granting of individual freehold title subject to whatever limitations the communities wish to impose on themselves regarding property sales. Traditional communities deserve to have the ownership and control of their properties restored to them without delay. They have been deprived of their rights for far too long.   

 

This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation.


Comments on Feature Article: Traditional community land is private property





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30 Nov 2012, 17:32 Rory Short As usual an imminently sensible approach to resolving traditional land holding issues therefore sadly highly unlikely that government will take it on board.


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03 Dec 2012, 08:14 Padda Rotti Having a couple of leaders with authority over communities is politically very useful because it makes it much easier to access and influence large constituencies. It would be much more difficult to win the support of individuals who think, act and are empowered as individuals.


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21 Mar 2014, 13:26 Martin Foster Quote: "If traditional community families receive freehold title to the homesteads and yards for which they now have usage rights but not title, the aggregate asset holdings of the community members will increase by a massive amount." Could you expand on the above? Who will issue title deeds? Traditional leaders or central government?