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South African land reform

Published online by Cambridge University Press:  28 July 2009

D. L. Carey Miller  and
Anne Pope
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Abstract

This article looks at the essential features and the effects of the South African land reform initiatives launched in the mid-1990s. After examining the context in which these initiatives have taken place, it deals separately with the three subprogrammes of land reform, namely, land restitution, land redistribution and land tenure reform. It discusses two particular features of the programme: its provision of title to millions of South Africans and its adjustment of the correlative position between the landowner and the holder of a lesser possessory or occupational right.

Type
Research Article
Information
Journal of African Law , Volume 44 , Issue 2 , Autumn 2000 , pp. 167 - 194
Copyright
Copyright © School of Oriental and African Studies 2000

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References

1 Two works have been published recently by Juta dealing with the South African land reform process: see Budlender, G. et al. , Juta's New Land Law, 1998Google Scholar, and Carey Miller, D.L. with Anne Pope, , Land Title in South Africa, 2000.Google Scholar

2 van der Merwe, C.G.’s definitive modern work in Afrikaans, Sakereg, 2nd edn, 1989, shows the extent of the Roman-Dutch common law influence over the entire area of propertyGoogle Scholar. See also Kleyn, D.G. & Boraine, A., Silberberg & Schoeman’ Law of Property, 3rd edn, 1993Google Scholar, and Carey Miller, D.L., The Acquisition and Protection of Ownership, 1986.Google Scholar

3 See Bennett, T.W., “African land—a history of dispossession”, in Zimmermann, R. and Visser, D. (eds.), Southern Cross: Civil Law and Common Law in South Africa, 1996, 65, 71.Google Scholar

4 White Paper on South African Land Policy, April 1997, 4.19.

5 The literature is too extensive to cite in detail but the following contributions may be mentioned: Davenport, T.R.H., “Some reflections on the history of land tenure in South Africa seen in the light of attempts by the state to impose political and economic control” (1985) Acta Juridica 53;Google ScholarSchoombie, J.T. “Group area legislation—the political control of ownership and occupation of land”, (1985) Acta Juridica 77;Google ScholarPlatsky, L. and Walker, C., The Surplus People; Forced Removals in South Africa, 1985;Google ScholarRobertson, M., “Segregated land law: a socio-legal analysis”, in Corder, H. (ed.), Essays on Land and Social Policy in South Africa, 1988, 285;Google Scholarvan der Merwe, D.“Land tenure in South Africa: a brief history and some reform proposals”, (1989) 4 TSAR 663;Google ScholarBudlender, G. and Latsky, J., “Unravelling rights to land and to agricultural activity in rural race zones”, (1990) 6 SAJHL 155Google Scholar; Olivier, N. et al. , “Legislation affecting land”, 1990 SAPL 266Google Scholarand Olivier, , “Grondreghervorming: die erwe van ons vaad're …”, (1991) Obiter 1Google Scholar; Bennett, T.W. and Roos, J.W., “The 1991 Land Reform Acts and the future of African customary law”, (1992) 109 SALJ 447Google Scholar; van der Walt, A.J., “Land reform in South Africa since 1990–an overview”, (1995) 10 SAPL 1Google Scholar, and “Tradition on trial: a critical analysis of the civil-law tradition in South African property law”, (1995) 11 SAJHR 169; van der Merwe, C.G. and Pienaar, J.M., “Land reform in South Africa”, in Jackson, P. and Wilde, D.C. (eds.), The Reform of Property Law, 1997, 334Google Scholar; Carey Miller, D.L., “The new South African land law”, in Jackson, P. and Wilde, D.C. (eds.), Property Law: Current Issues and Debates, 1999, 281Google Scholar; Carey Miller, D.L., “A new property?”, (1999) 116 SALJ 749.Google Scholar

6 The Deeds Registries Act 47 of 1937, still the controlling statute, represents a development which commenced in the Netherlands. It may be noted that the South African system does not provide an active guarantee of title, but in practice a very high degree of security is achieved; see Carey Miller, n. 2, 169–77; see also, generally, Simpson, S.R., Land Law and Registration, 1978.Google Scholar

7 One commentator observed that ‘[i]n many ways the most effective policing is achieved with the assistance of the various Deeds Registries where any attempt to register ownership in the name of a disqualified person would be thwarted.’ See Robertson, M., “Dividing the Land: an Introduction to Apartheid Land Law”, in Murray, C. and O'Regan, C., ’No Place to Rest: Forced Removals in the Law of South Africa, 122, 126.Google Scholar

8 Constitution of the Republic of South Africa Act 108 of 1996.

9 Constitution of the Republic of South Africa Act 200 of 1993.

10 S. 25(2).

11 S. 25(1).

12 White Paper, n. 4, 3.1.5.

13 S. 25(4)(a).

14 S. 25(5).

15 S. 25(6). It may be noted that section 25(9) provides that “Parliament must enact the legislation referred to in subsection (6).”

16 The Restitution of Land Rights Act 22 of 1994.

17 S. 25(7). The starting point is based on the commencement date of the Natives Land Act 27 of 1913.

18 S. 25(8).

19 Under s. 11 of the Restitution of Land Rights Act 22 of 1994.

20 For example, disallowing the removal or destruction of any improvement without the written authority of the Chief Land Claims Commissioner (s. 11(7)(c)).

21 1997 (2) SA 621 (CC).

22 At 633E.

23 S. 39(l)(b).

24 S. 39(l)(c).

25 A monograph by Professor van der Walt, A.J., The Constitutional Property Clause, 1997Google Scholar, and a chapter by G. Budlender (then Director General of the Department of Land Affairs, but not expressing views to be attributed to the Department), “The constitutional protection of property rights”, in Budlender, et al, op. cit.

26 Van der Walt, n. 25, 163.

27 Ibid.

28 de jure Belli ac Pacis, 1625, 2.2.6.2; 2.7.1. See Carey Miller, n. 2, 107.

29 See Carey Miller, n. 2, 192, where the racial legislation is described as “a creature of its own, an external factor, a twentieth-century accrescence which, it would seem, can only be of a transient nature” and which “is of no relevance to the principles of the passing of ownership in land although it obviously has major implications from the point of view of practical conveyancing.”

30 See nn. 23 and 24.

31 See Sv. Makwanyane 1995 (3) SA 391 (CC).

32 See Van der Walt, A.J.Constitutional Property Clauses, 1999Google Scholar; see also de Wet, E., The Constitutional Enforceability of Economic and Social Rights: the Meaning of the German Constitution as Model for South Africa, 1996.Google Scholar

33 Sv. Makwanyane 1995 (3) SA 391 (CC) para 39.

34 The then Minister of Land Affairs, Derek Hanekom, in a foreword to the White Paper, noted the link between the three key elements of the land reform programme and the provisions of the Constitution; see n. 4, foreword and at 4.1.

35 As in the Upgrading of Land Tenure Rights Act 112 of 1991.

36 As in the Land Reform (Labour Tenants) Act 3 of 1996.

37 S. 1 of the Communal Property Associations Act 28 of 1996.

38 As Bennett, T.W., Human Rights and African Customary Law, 1995, 131 notes, the word is used here in a loose sense to mean that “…an individual's entitlement to land or its resources flows from membership of a political community (even though there is nothing communal about the allocation of land and its resources: the community's political leaders perform these tasks …)”.Google Scholar

39 See, for example, In re Elandskloof Vereniging 1999 (1) SA 176 (LCC) and Khumalo and Others v. Potgieter and Others LCC 34/99 (unreported) dated 17 December, 1999, in respect of restitution and redistribution respectively.

40 See n. 4, 4.19.

41 See n. 4, 6.15.3.

42 It may be noted that the basic deed of transfer form (Form E) provided for in the Regulations under the Deeds Registries Act 47 of 1937, by including “initial ownership”, reflects a wider scope of the concept of ownership than was formerly the case.

43 The Deeds Registries Act 47 of 1937 s. 63(1) provides “No deed, or condition in a deed, purporting to create or embodying any personal right, and no condition which does not restrict the exercise of any right of ownership in respect of immovable property, shall be capable of registration …”

44 Form DDD in the Regulations under the Deeds Registries Act 47 of 1937.

45 Reference may be made to a letter dated 23 June, 1997, from Mr P.J. Badenhorst of the Bellville firm Laubscher & Hattingh, concerning Khayelitsha transfers (under s. 13(1) of the Upgrading of Land Tenure Rights Act 112 of 1991) and indicating that transfer no. 10,000 had recently been registered and that the registration of some further 18,000 transfers was projected in the following six months.

46 See the Land Survey Act 8 of 1997.

47 See, for example, Sol Plaatje (ed. Brian Willan), 1996, 123–299. See also, generally, Carey Miller and Pope, n. 1, 1–42.

48 Ibid, 241–281.

49 White Paper, n. 4, 4.13.

50 S. 121(6) of the interim Constitution provided that any claim on the basis of the right to restitution in the projected legislation “shall be subject to such conditions, limitations and exclusions as may be prescribed by such Act”. It may be noted that the Constitution in s. 25(7) provides for the right to “restitution of… property or to equitable redress” subject to the general formula of “to the extent provided by an Act of Parliament”.

51 A recent publication illustrates the complexity of the existing restitution process in surveying the progress of two restitution claims (Putfontein in the North-West Province and Macleantown in the Eastern Cape): see Brown, M. et al. , Land Restitution in South Africa: a Long Way Home, 1998Google Scholar: see also Jaichand, V., Restitution of Land Rights: a Workbook, 1997.Google Scholar

52 S. 22 of the Restitution of Land Rights Act 22 of 1994.

53 In a statistical survey document of 24 February, 1999 (“A Summary of the National Profile of the Restitution Process” kindly made available by the Regional Land Claims Commissioner's Office in Cape Town) then Acting Chief Land Claims Commissioner Adv W.A. Mgoqi states that: “[t]he process is going to make a major shift from a court driven process to an administrative process, with commissioners having powers delegated to them to finalise claims.” This statement was made in anticipation of the reforms introduced by the Land Restitution and Reform Laws Amendment Act 18 of 1999.

54 See, for example, In re Macleantown Residents Association 1996 (4) SA 1272 (LCC).

55 See, for example, Van der Walt and others v. Lang and others 1999 (1) SA 189 (LCC).

56 In a Memorandum on the Objects of the Land Restitution and Reform Laws Amendment Bill, 1999, published with the Bill which subsequently became Act 18 of 1999, certain changes proposed by the Department of Land Affairs are supported on the basis of being requested by “the President and judges of the Court” (para. 7).

57 1997 (4) SA 1108 (LCC).

58 At 112SB per Meer, J.

59 Farjas (Pty) Ltd. v. Land Claims Commissioner, KwaZulu-Natal 1998 (2) SA 900 (LCC) 937E, F.

60 Case LCC 107/98 (unreported) dated 10 February, 1999.

61 As is required in terms of s. 2(l)(a) of the Restitution of Land Rights Act 22 of 1994.

62 The Constitutional Court has clearly indicated this is the approach to be taken: see S v. Zuma & Others 1995 (2) SA 642 (CC) at 650H–653B; S v. Makwanyane and Another 1995 (3) SA 391 (CC) at 403C-404A; Soobramoney v. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) at 772F–773A, 779B–I. The Land Claims Court has previously accepted this approach in respect of restitution: see Dulabh and Another v. Department of Land Affairs 1997 (4) SA 1108 (LCC) at 1123–1124B.

63 See above Van der Walt, n. 25, 163.

64 See n. 4. Box 4.7.

65 Ibid., 4.14.1.

66 See Bennett, T.W., “Restitution of land and the doctrine of aboriginal title in South Africa”, (1993) 9 SAJHR 443.Google Scholar

67 Ibid., 4.14.2.

68 Idem.

69 See generally Bennett, n. 3.

70 S. 25(6).

71 White Paper, n. 4, 4.14.2.

72 White Paper, Ibid., 4.14.6.

73 White Paper, Ibid., 4.14.4.

74 Idem.

75 Idem. It may be noted that a provision for possible priority access to state housing and land development resources (s. 35(2)(d)) has been repealed and replaced by general access to state aid: see s. 42C.

76 S. 25(7).

77 S. 121(1).

78 See n. 22.

79 Juta's New Land Law, n. 25. contains a digest of cases, including unreported decisions. It may be noted that all decisions of the Land Claims Court are available at www.law.wits.ac.za/lcc.

80 White Paper, n. 4, 4.14.5.

81 White Paper, Ibid., 4.1.4.6.

82 Ibid., Box 4.8.

83 S. 6(2)(d) of the Restitution of Land Rights Act 22 of 1994.

84 S. 12(4).

85 White Paper, n. 4, Box 4.8.

86 S. 34.

87 See Gilfillan, D., “Restitution: can entitlement to tenure reform break through the constitutional barrier of the 1913 cut off date?”, in Barry, M. (ed.), Proceedings of the International Conference on Land Tenure in the Developing World, University of Cape Town, 1998, 186Google Scholar. See the press report by Wegerif, M., the director of the Nkuzi Development Association (Sunday Independent 14 March, 1999), which indicates dissatisfaction with the pace of rural land reform as expressed at a Northern Province conference.Google Scholar

88 A deadline of 31 December, 1998, was an extension of the original requirement that a claim be lodged within three years of a date fixed in terms of the Act—1 May, 1995—giving the original deadline of 30 April, 1998.

89 These figures (dated February 1999, at the time of writing, the most recent published by the Department of Land Affairs) indicate a total number of 63,455 claims lodged (some four times more than the 15,874 total of 2 June, 1997). No overall urban/rural breakdown is given in the latest figures but provincial statistics confirm the expected pattern of a higher proportion of urban claims, for example KwaZulu-Natal 80 per cent urban, 20 per cent rural. It is beyond present scope to consider the complex body of statistics presented in the 1999 document; suffice to note that a single “community” claim may involve a large number of persons (see, for example, the Eastern Cape and Free State figures which include the Bensonvale claim involving some 10,000 people).

90 Memorandum on the Objects of the Land Restitution and Reform Laws Amendment Bill, 1999, para. 1.

91 S. 25(5).

92 See n. 4, 4.3.

93 At the time of writing set at R 15,000 per household.

94 See n. 4, 4.3. In this regard, see Khumalo and Others v. Potgieter and Others LCC34/99 dated 17 December, 1999, which concerns the acquisition of land by labour tenants.

95 Report in The Sunday Independent (South African) of 15 February, 1998.

96 See n. 4, 4.3.

97 Ibid., Box 4.1 (the White Paper's identification of the eight ‘Principal National Land Reform Laws’).

98 Initially the Provision of Certain Land for Settlement Act 126 of 1993; now the Provision of Certain Land and Assistance Act 126 of 1993 as amended and renamed by the Provision of Certain Land for Settlement Amendment Act 26 of 1998.

99 The Deeds Registries Act 47 of 1937 now provides in s. 3(l)(d)bis for the new form.

100 See n. 4, 4.8.

101 For details, see Carey Miller and Pope, n. 1, 303.

102 See. 4, 4.15.

103 Ibid, 4.16.

104 Idem.

105 In this regard, see Keightley, R., “The impact of the Extension of Security of Tenure Act on an owner's right to vindicate immovable property”, (1999) 15 SAJHR 111.Google Scholar

106 The third draft of a paper, “Proposals for securing vulnerable rights in land”, submitted by the Tenure Reform Directorate to the Land Reform Policy Committee of the Department of Land Affairs on 20 November, 1997.

107 Para. 5.1.

108 The Transformation of Certain Rural Areas Act 94 of 1998 is relevant.

109 See Carey Miller and Pope, n. 1, 241–281.

110 See the Abolition of Racially Based Land Measures Act 108 of 1991.

111 See n. 4. box 4.10.

112 47 of 1937.

113 It may be noted, however, that the 1991 reform legislation had already provided for acquisition by an ethnic entity denned in general terms but otherwise unspecified as a legal entity.

114 S. 5(l)(d).

115 S. 5(l)(d)(i).

116 S. 62(4) of the Development Facilitation Act 67 of 1995.

117 S. 62(5)(a). The subsection admits of two necessary exceptions: complying with a condition of establishment and, of course, the registration of ownership under the normal land development process of the Act (s. 38(1)).

118 S. 62(6).

119 Ibid.,

120 S. 62(5)(b).

121 S. 1 of the Prescription Act 68 of 1969.

122 See n. 4, Box 4.9.

123 See, for example, J.A., Schreiner, in Vulcan Rubber Works (Pty) Ltd v. SAR & H 1958 (3) SA 285 (A) at 289B: ‘Subject to special defences our law gives the owner of property the right to recover it from anyone who is in possession of it.’Google Scholar

124 S. 1 defining “beneficial occupation”.

125 S. l(c) defining “informal right to land”.

126 S. 2(1).

127 S. l(f).

128 See s. 5(2).

129 S. 1 of the Development Facilitation Act 67 of 1995.

130 See the “Memorandum on the Objects of the Extension of Security of Tenure Bill, 1997”, published with the Bill.

131 See Ngwenya and Others v. Grannersberger 1999 (4) SA 62 (LCC) ruling that unless land is actually proclaimed a township, it falls under the ambit of the Extension of Security of Tenure Act. Even then, township land designated as being for agricultural purposes is subject to the Act's provisions in terms of s. 2(1).

132 S. 3(2).

133 S. 8(2) & (3).

134 S. 8.

135 See Hathorn, M. and Hutchison, D., “Labour tenants and the law”, in Murray and O'Regan, n. 7, 194.Google Scholar

136 See Kirsten, J. and van Zyl, j., “The contemporary agricultural policy environment: undoing the legacy of the past”, in van Zyl, j. et al. (eds), Agricultural Land Reform in South Africa, 1996, 199.Google Scholar

137 See, for example, Beinart, W., “Settler accumulation in East Griqualand”, in Beinart, W. et al. (eds), Putting a Plough to the Ground, 1986, 275–8.Google Scholar

138 Protecting Human Rights in a New South Africa, 1990, 125.

139 S. 1.

140 Idem.

141 See Mahlangu v. De Jager 1996 (3) SA 235 (LCC); Zulu and Others v. Van Rensburg 1996 (4) SA 1236 (LCC); Klopper and Others v. Mkhize and Others 1998 (1) SA 406 (N); Tselentis Mining (Pty) Ltd v. Mdlalose and Others 1998 (1) SA 411 (N); Mosehla v. Sancor CC 1999 (1) SA 614 (TPD).

142 Ngcobo and Others v. Salimba CC; Ngcobo v. Van Rensburg 1999 (2) SA 1057 (SCA).

143 1998 (4) SA 1014 (LCC) 1022.

144 See De Jager, v. Sisana, 1930 AD 71 and Crous v. Crous 1937 CPD 250; both cases are commented on by Hathorn and Hutchison (n. 135) 209–10.Google Scholar

145 S. 15.

146 Idem.

147 See, for example, Khumalo and Others v. Potgieter and Others LCC34/99 dated 17 December, 1999, which was referred to the Land Claims Court for adjudication on the amount of compensation payable.

148 This development is reflected in an extensive case law involving the development of the protection of an occupying possessor in circumstances involving moves by the owner to recover physical possession of land; see, for example, Fredericks v. Stellenbosch Divisional Council 1977 (3) SA 113 (C); Ntshwaqela v. Chairman, Western Cape Regional Services Council 1988 (3) SA 218 (C); Vena v. George Municipality 1987 (4) SA 29 (C); George Municipality v. Vena and another 1989 (2) SA 263 (A); Kgosana v. Otto 1991 (2) SA 113 (W); Mbangi v. Dobsonville City Council 1991 (2) SA 330 (W). That the pendulum has swung completely appears from the case of Despatch Municipality v. Sunridge Estate and Development Corp 1997 (4) SA 596 (SEC). See also Van der Walt, A.J.“Squatting, spoliation and the new constitutional order”, (1997) 60 THRHR 522.Google Scholar

149 preamble to Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.

150 Ibid.

151 Ibid.

152 See s. 64 of the Development Facilitation Act 67 of 1995 and Form DDD under the Deeds Registries Act 47 of 1937.

153 The relevant legislation is: the Land Reform (Labour Tenants) Act 3 of 1996; the Interim Protection of Informal Land Rights Act 31 of 1996; the Extension of Security of Tenure Act 62 of 1997; the Prevention of Illegal Eviction from and the Unlawful Occupation of Land Act 19 of 1998.

154 1999 (4) SA 491 (LCC).

155 1999 (4) SA 43 (LCC).

156 In terms of s. 8(1) and 8(l)(a) of the Extension of Security of Tenure Act 62 of 1997.

157 See now the summary and reference in the editors’ introduction in Zimmermann and Visser, n. 2, 24.

158 See the dictum of J., Gildenhuys, in Mkwanazi v. Bivane Bosbou (Pty) Ltd and Three Similar Cases 1999 (1) SA 765 (LCC) 771 in which the consequence of the right of vindication being displaced by an enhancement of lesser rights is implicit in the learned Judge's identification of the purpose of the Land Reform (Labour Tenants) Act 3 of 1996 as being: “to give protection to labour tenants who would otherwise be required to vacate the farms where they live because their contractual or common-law rights to live there had terminated”. See also Keightley, n. 105.Google Scholar

159 For a review of the prior position, see Hathorn, M. and Hutchison, D., “Labour tenants and the law”, in Murray and O'Regan, n. 7, 194.Google Scholar

160 See, for example, Mahlangu v. De Jager 1996 (3) SA 235 (LCC); Zulu and Others v. Van Rensburg 1996 (4) SA 1236 (LCC); Klopper and Others v. Mkhize and Others 1998 (1) SA 406 (N); Tselentis Mining (Pty) Ltd v. Mdlalose and Others 199 (1) SA 411 (N); Makhomboti v. Klingenberg and Another 1999 (1) SA 135 (TPD); Manana and Others v. Johannes 1999 (1) SA 181 (LCC); Mosehla v. Sancor CC 1999 (1) SA 614 (TPD); Van der Walt and Others v. Lang and Others 1999 (1) SA 189 (LCC); Dhladhla and Others v. Erasmus 1999 (1) SA 1065 (LCC); Ntuli and Others v. Smit and Another 1999 (2) SA 540 (LCC); Ngcobo and Others v. Salimba CC; Ngcobo v. Van Rensburg 1999 (2) SA 1057 (SCA).

161 See Visser, D.P. “The absoluteness of ownership: the South African Common Law in perspective”, (1985) Acta juridica 39.Google Scholar

162 See Van der Merwe, n. 2, 12.

163 See Serole and Another v. Pienaar 2000 (1) SA 328 (LCC).Google Scholar

164 See Van Zuydam v. Zulu 1999 (3) SA 736 (LCC).Google Scholar

165 See Hlatshwayo and Others v. Hein 1999 (2) SA 834 (LCC) at 845H.Google Scholar

166 S. 32(3){b).

167 Ipp, D.A., “Judicial intervention in the trial process”, (1995) 69 Australian Law Journal 365, 368.Google Scholar

168 Mlifi v. Klingenberg 1999 (2) SA 674Google Scholar (LCC) at 704C. Other instances of instrumentality may be found, for example, in Atkinson v. Van Wyk 1999 (1) SA 1080Google Scholar (LCC), Lategan v. Koopman 1998 (3) SA 457 (LCC) and Karabo and Others v. Kok and Others 1998 (4) SA 1014 (LCC).Google Scholar

169 As in Diepsloot Residents’ and Landowners’ Association v. Administrator, Transvaal 1994 (3) SA 336 (A). Rather see Rademeyer & Others v. Western Districts Council & Others 1998 (3) SA 1011 (SEC). See also Keightley, n. 105, where the question of whether owner's right to vindicate immovable property survives the new legislation, is examined.

170 See n. 22.

171 See Manana and Others v. Johannes 1999 (1) SA 181 (LCC). In this matter, involving an assertion of rights with both the Land Reform (Labour Tenants) Act 3 of 1996 and the Extension of Security of Tenure Act 62 of 1997 potentially relevant, the Court applied the costs de bonis propriis device to secure the proper presentation of the claim of “unsophisticated” applicants by their legal representatives. Regarding costs, see also Hlatshwayo and Others v. Hein 1999 (2) SA 834 (LCC).