“The handover of these title deeds on the eve of Human Rights Day,” President Ramaphosa said at a recent event conferring formal ownership on a community whose claim had taken three decades to process, “reminds us that achieving our freedom was about far more than rights on paper.”
The event, in the Umzimkhulu District currently being used for forestry, was the sort of event that the President and the government revel in; nevertheless, that was a fair comment.
More insightful and revealing, however, were his remarks carried in news reports on the event: “They’re now the owners, whether we like it or not, from today. The companies involved must treat the claims as equals; there will be no more baas.”
This was all of a piece with the tenor of his speech, which foregrounded historical wrongs and dispossession. But there was also a sleight of hand at work. President Ramaphosa noted the following: “The land that has been restituted has been under long-term lease from the Department of Forestry, Fisheries and the Environment to Singisi Forestry Products, for commercial forestry use.”
In other words, this claim did not involve the transfer of ownership from one private owner (presumably the “baas”, to use the President’s formulation) to another, but from the very state that the President represented. This is an element of South Africa’s land politics that is under-appreciated, and frequently misrepresented.
According to the government’s 2017 Land Audit, something in the order of a quarter of the land in South Africa is in one way or another held by the state. In KwaZulu-Natal, this amounts to around 44%, largely through land held by the Ingonyama Trust. Historically, this has been the landholding model for South Africa’s African people, and it remains so today.
This is the outcome of perverse policy, past and present. Colonial governments and their successors after 1910 deprived Africans of private land ownership (outside a few dedicated areas), both as a means of social control and also because of the assumption that Africans required a culturally specific form of property holding: one that fell short of freehold ownership. Post-1994, there remains a strong official caution – if not outright aversion – to granting those rights. This has been expressed in a failure to transfer properties that had been family homes for generations, and issuing so-called RDP properties with restrictions on renovation, letting and resale. The state objective was to provide shelter, not property.
Ambivalent
More seriously, very little has been done to confer property rights to individuals and households living under traditional leadership. And the approach to private ownership through land reform has been ambivalent, to say the least.
The former minister of rural development and land reform, Gugile Nkwinti, was abundantly clear on his opposition to black land reform beneficiaries being true owners during the debate in Parliament in February 2018 that kicked off the Expropriation without Compensation drive. Allowing beneficiaries to actually own the land that the government would be providing risked their “losing” it. Therefore, “a progressive revolutionary government ought to then have land and allocate it to people”. Refusing to confer title was state policy.
This policy has been revised somewhat, and the 2024 State Land Lease and Disposal Policy provides a path to ownership for land reform beneficiaries that meet the relevant criteria. However, true ownership is still withheld from hundreds of thousands of arguably the most important land reform beneficiaries: those who own their property through the “Communal Property Association” (CPA) mechanism.
An amendment to the Communal Property Association (CPA) Amendment Act in 2024 constrained CPAs from mortgaging, leasing or selling land without the “consent” of an official “Registrar”. The “owners” would need to prove to this Registrar that it was in the landowners’ interests to transact with their own land. This places an unparalleled burden on the close to half a million rural landowners who hold their property through CPAs.
Incidentally, IRR Legal, founded by my colleague Gabriel Crouse, has applied (under the Promotion of Access to Information Act) for the Department of Land Reform and Rural Development to disclose how many applications it has received, and processed. The Department has refused to disclose the information, and a legal challenge is ongoing. Crouse has commented: “The CPA owner’s property rights are human rights, and those rights are not only being violated; the state is trying to cover it up.”
Benefit of the community
President Ramaphosa, incidentally, called on CPAs to use the revenue they would receive in rent from the forestry companies for the benefit of the community, which would legally depend on the disposition of the “Registrar”.
This puts the president’s comments in perspective: “They’re now the owners, whether we like it or not, from today.” A News24 piece was more accurate in stating: “CPAs are legal entities that enable communities to acquire, hold and manage property collectively”, with the word “own” conspicuous by its absence.
The reality is that the state doesn’t particularly like it for land reform beneficiaries to become true owners and has very little evident intention of making this a reality for millions of other South Africans. To be sure, it enjoys the performativity involved in handing over title deeds, but baulks at proactively granting them, and evinces a visible reluctance to recognise the property rights that they signify.
And while companies may well be required to treat communities “as equals”, the same does not apply to the state. The ‘baas’ mentality sadly endures in a new form.
[Image: Towfiqu barbhuiya on Unsplash]
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