Contested land tenure reform in South Africa: experiences from Namaqualand

Abstract

In South Africa the distribution of land rights remains a major manifestation and cause of injustice, only slowly affected by the constitutionally mandated programme of land restitution, redistribution and tenure reform. The Transformation of Certain Rural Areas Act 94, 1998 (Trancraa) is the first post-apartheid legislation to reform ‘communal’ land tenure. It applies to 23 former ‘coloured rural areas’ and was introduced in six areas in Namaqualand in the Northern Cape Province during 2001–2. In a different, contested process a Communal Land Rights Bill for the former ‘homelands’ was published in August 2002, adopted by Cabinet in 2003 and signed into law in July 2004. While the Communal Land Rights Act relies on ‘traditional councils’ with a majority of non-elected members, Trancraa was enacted in the context of the 1997 White Paper of South African Land Policy and focused on community choice and the role of municipalities. The consultative process in Namaqualand was driven by civil society organisations and community actors, but did not include the training, finance and development support needed to transform rural relations among people affected by unemployment, land scarcity and weak local organisations. To promote procedural and substantive justice, tenure reform must honour the human rights of equality, redress and land development support articulated in land policy and the Constitution.

Acknowledgments

We are grateful to PLAAS for providing the academic environment for the research and for support through the PLAAS-Noragric programme ‘Human rights, governance and land reform in South Africa’, which is financed by Norad through the Norwegian Centre for Human Rights, University of Oslo. We also thank the Norwegian Research Council and the European Union for funding. We thank Surplus People Project and Legal Resources Centre Cape Town for generously sharing their knowledge and experience. Thanks to the people and local government officials in Namaqualand, particularly in Pella, Komaggas and Leliefontein. We thank and remember Francios Z. Jansen from Concordia, who contributed greatly as interpreter and whose recent death was such a tragic loss.

Additional information

Notes on contributors

Poul Wisborg

Visiting research fellow at Programme for Land and Agrarian Studies (PLAAS), University of Western Cape (2001–2002) and PhD research fellow at Noragric, Department of International Environment and Development Studies, Norwegian University of Life Sciences, PO Box 5003, N-1432 Aas, Norway (e-mail: [email protected]).

Rick Rohde

Senior researcher at Programme for Land and Agrarian Studies (PLAAS), University of Western Cape and Research fellow at the Centre of African Studies, University of Edinburgh, 21 George Square, Edinburgh EH8 9LD, Scotland, UK (email: [email protected]).