Understanding the renovation of public land policy - the case of the Communal Land Rights Act (CLaRA) of South Africa

Abstract

With the advent of democracy in South Africa in 1994, the newly elected ANC government embarked on an ambitious program of land reform. The land reform programme in South Africa rests on 3 pillars: <ul> <li> Land redistribution</li> <li> Land restitution</li> <li> Land tenure reform</li> </ul> Land tenure reform is at the core of this case study and of the 3 pillars, has faced the most challenges during implementation. The renovation of public policy in general, and particularly in land policy, appears in numerous cases to be a priority on national agendas to relieve the numerous challenges rural Africans face: land conflicts, land insecurity, important demographic pressures and weight, high prevalence of poverty in rural areas, to identify just a few of these challenges. By analysing the development process of the Communal Land Rights Act of 2004 (CLaRA), this case study sought to understand the renovation of public land policy in South Africa. Review of literature on land tenure reform yielded a dichotomy of views with one side favouring freehold title for landless communities whilst on the other hand, there are proponents of a hybrid tenure system that recognizes the functioning aspects of traditional communal tenure. Those favouring freehold title pointed to the fact that this would increase investments on the land and access of the landowners to capital through formal financial markets. Those who would not be in a position to work the land would be able to sell it and invest the money elsewhere. Contrastingly, communal tenure was seen to have benefits for the wider community and for holders of secondary land rights such as women and children who could be excluded under freehold tenure arrangements. The notion that cash poor landless people could sell the land also raises political issues which might be politically detrimental to the government of the day. The research was primarily qualitative, interviewing a broad spectrum of stakeholders in the CLaRA development process. Stakeholders included government officials, traditional leadership, communities, legal advisors, land based NGOs, civil society, academia, research institutions, parliamentarians and politicians. The objective of this research was to determine the extent of participation by various stakeholders at the national level in policy development, with CLaRA as a case study. This was done through analyzing the various positions taken by different stakeholders and the extent to which these were included or the extent to which these influenced the content of the final Act. The outcome of the analysis indicates that to a greater extent, participatory processes seemed to have taken place during the development of the CLaRA, including numerous submissions by various groups to parliamentary portfolio committees, but the final content of the Act reflected predominantly the views of government and not other affected stakeholders. This led to the immediate challenge of the legislation in court by some communities and civil society leading to the eventual nullification of the legislation by the constitutional court. Copyright